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A   TREATISE 


o»tS9^.  ©ft     ''JTr^/: 


LAW  OF  NEGLIGENCE 

BY 

HORACE  SMITH,  B.  A. 


ELABOBATED  WTTH  NOTES  AND  REFERENCES  TO  AMERICAN  CASES. 

By  W.  H.  WHITTAKER, 

Of  the  Cincinnati  liar. 


SECOND  AMEBICAN—  FBOM  SECOND  ENGLISH  EDITION. 


RE-EDITED,  AND    ENLAROED  WITH   THE    CITATION    OF  ALL   THE  AMERICAN  CASES 
BRODGHT  DOWN  TO   DATE. 

By  JAMES  AVERY  WEBB, 

Editor  of  the  last  editions  of  Pollock  on  Torts  and  Burr  ill  on  Assignment, 


ST.   LOUIS: 
THE  F.  H.  THOMAS  LAW  BOOK  CO. 

1890. 


» 


T 


Entered  according  to  Act  of  Congress  In  the  year  1896,  by 

THE  F.  H.  THOMAS  LAW  BOOK  CO., 
In  the  Oflice  of  the  Librarian  of  Congress,  at  Washington. 


St.  Louis.  Mo.: 

PrtxK  of  Xixon-Joiies  Prititiiig  Co., 

-Jo   J'inc  atrett. 


Va 


TO  HONORABLE 

AMOS    M.     THAYER, 

UNITED  STATES  CIRCUIT  JUDGE  OF  THE  EIGHTH  JUDICIAL  CIRCUIT, 

Whose  high  opinion  of  the  original  text  of  this  book 
became  the  incentive  for  its  first  republication,  this  new 
and  enlarged  edition  is  cordially  inscribed  by 

THE  PUBLISHERS. 


(iii) 


735939 


PREFACE  TO  THE  FIRST  EDITION. 


The  "  Law  of  Negligence  "  has  not,  I  think,  received  that 
amount  of  attention  from  English  text  writers  which  its 
importance  would  seem  to  demand. 

The  division  of  negligence  into  three  classes :  Neglect 
of  duties  requiring  (1)  ordinary,  (2)  more  than  ordinary, 
and  (3)  less  than  ordinary  care  appeared,  upon  the  whole, 
to  be  a  reasonable  plan.  This  division  is,  no  doubt,  some- 
what arbitrary  ;  but  it  has  the  advantage  of  proceeding  in 
some  measure  super  antiquas  vias,  and  it  adapts  itself  to 
the  increasing  complexity  of  modern  obligations.  It  cannot 
be  doubted  that  in  the  progress  of  civilization  a  constantly 
increasing  amount  of  care  is  required  of  men  in  proportion 
to  the  increased  skill  and  intelligence  which  they  are  found 
to  possess,  to  the  increased  difficulties  of  the  duties  which 
they  undertake  to  perform,  and  to  the  keener  sense  of 
responsibility  toward  others  which  is  characteristic  of  a 
more  refined  age.  Thus  it  will  be  found,  I  think,  that 
there  is  a  tendency,  both  in  the  recent  judgments  of  the 
judges  and  in  the  enactments  of  the  Legislature,  to  widen 
the  responsibilities  of  men  in  their  conduct  toward  others. 

Upon  the  whole,  then,  I  have  thought  such  a  division  of 
my  work  to  be  desirable  as  giving  a  clearer  view  of  what 
care  the  law  requires  in  the  performance  of  duties  generally. 
These  divisions  I  have  subdivided  into  different  sections, 
each  section  dealing  with  a  particular  class  of  circum- 
stances :  as,  for  instance,  "  Duties  of  Owners  of  Property," 
"  of  Owners  of  Animals,"  "  of  Controllers  of  Highways," 
"  of  Physicians,"  "  of  Solicitors,"  etc.,  etc.  ;  for  I  cannot 

(V) 


Vi  PREFACE    TO    THE    FIRST    EDITION. 

doubt  that  for  coDvenience  of  reference  such  subdivisions 
are  extremely  useful,  and  I  have  aimed,  as  far  as  possible, 
at  rendering  my  work  a  practical  treatise  upon  the  law  for 
the  use  of  the  profession. 

With  regard  to  the  manner  in  which  the  cases  from  the 
various  reports  have  been  dealt  with,  I  have  found  it 
impossible  within  the  proposed  limits  of  this  volume  to 
discuss  the  judgments  at  any  great  length.  I  have  endeav- 
ored to  state  what  I  believe  to  be  the  result  of  a  number 
of  cases  in  the  text,  and  in  the  note  have  given  the  names 
of  the  cases;  generally  indicating,  in  a  few  words  in  a 
bracket,  what  the  principal  fact  was,  so  as  to  assist  the 
memory  of  the  reader  and  to  enable  the  practitioner  to  find 
those  cases  which  are  most  similar  to  the  one  which  he  has 
in  hand;  and  sometimes  I  have  offered  some  suggestion 
towards  a  just  appreciation  of  the  decision. 

The  subject  of  negligence  with  respect  to  the  management 
of  ships  has,  I  feel,  been  inadequately  treated.  Questions 
of  negligence,  causing  the  loss  of  goods  or  of  the  vessels 
themselves,  are  invariably  complicated  by  the  special  con- 
tracts entered  into,  such  as  bills  of  lading,  charter-parties, 
or  insurances,  regulations  of  navigation,  the  laws  and  cus- 
toms of  Maritime  Courts,  and  other  matters.  The  cases 
are  numerous  and  intricate,  and  I  have  felt  that  my  book 
would  be  overbalanced  by  a  full  discussion  of  the  Law  of 
Negligence  as  applied  to  shipping ;  but  that  some  account 
of  the  subject  onght  to  be  given  in  order  to  render  the 
work  as  complete  as  possible.  I  am  indebted  to  Mr.  As- 
pinall,  of  the  Common  Law  Bar,  for  havi.jg  kindly  looked 
over  this  section,  and  given  me  the  benefit  of  some  sug- 
gestions, although  I  alone  am  responsible  for  any  errors 
which  may  appear. 

I  have  availed  myself  of  the  learning  and  philosophic 
reasoning  of  Wharton,  the  lucid  exposition  of  Shearman 
and  Redfield,  and  the  suggestive  ingenuity  of  Campbell. 


PREFACE    TO    THE   FIRST    EDITION.  vii 

I  cannot  hope  that  I  have  succeeded  in  combining  all  their 
merits,  and  1  am  sensible  that  my  work  may  have  serious 
defects  of  its  own  ;  but  after  the  care  and  labor  I  have 
bestowed  I  cannot  help  believing  that  I  have  produced  a 
useful  book. 

Horace  Smith. 

i,  Paper  Buildings,  Temple. 

May,  1880, 


PREFACE  TO  THE  SECOND  EDITION. 


The  kind  manner  in  which  the  First  Edition  of  this  Book 
was  received  by  the  Profession,  and  the  very  favorable 
criticisms  of  the  Press,  have  induced  the  Author  to  believe 
not  merely  that  a  Second  Edition  will  be  acceptable,  but 
that  the  Work  will  establish  itself  as  a  thoroughly  recog- 
nized text-book  upon  the  subject  of  which  it  treats.  That 
subject  is  one  of  great  interest  and  of  wide  scope.  Every 
member  of  the  community  has  duties  to  perform  towards 
other  meml)ers,  and  those  others  have  duties  to  perform 
towards  him.  Many  of  these  duties  are  such  as  the  law 
will  enforce;  some  of  them  are  of  absolute  obligation  to 
tlo  or  to  refrain  from  doing  some  [)ai titular  act;  but  a 
great  many  of  them  only  impose  an  oMigation  to  take  care 
in  the  doing  or  in  the  omission  of  acts,  and  this  obligation 
to  take  care  is  one  which  is  constantly  arising  in  the  daily 
life  of  almost  every  man.  Moreover,  the  questions  which 
arise  in  actions  of  negligence  are  often  extremely  subtle, 
involving  questions  of  morals,  and  "those  considerations 
which  ordinarily  regulate  the  conduct  of  human  affairs." 
The  law,  also,  is  in  an  unsettled,  and  even  in  a  progressive 
state.  These  considerations  will,  I  think,  show  that  the 
"  Law  of  Negligence"  is  an  interesting  and  important 
topic,  and,  as  I  observed  in  the  Preface  to  the  First 
Edition,  is  one  which  has  not  sufficiently  attracted  the 
attention  of  text-writers  in  England. 

The  division  and  arrangement  of  the  subject  has  received 
general  approval,  and  the  <levice  of  citing  cases  by  ailding 
to  the  name  of  the  case  a  few  words  (in  brackets)  indicating 

(ix) 


X  PREFACE   TO   THE   SECOND   EDITION. 

the  special  circumstaoces,  in  order  to  assist  the  memory, 
has  met  with  the  "  sincerest  flattery." 

The  text  has  been  generally  enlarged  and  amended 
throughout,  and  many  fresh  cases  have  been  inserted. 
New  sections  have  been  added  upon  "  The  Employers' 
Liability  Act,"  '«  The  Neglect  of  Duties  by  Trustees," 
"by  Directors  of  Companies,"  and  "by  Stockbrokers." 
The  judgment  of  Brett,  M.  R.,  in  the  case  of  Heaven  v. 
Pender,  has,  in  consequence  of  its  great  importance,  been 
set  out  at  full  length  in  an  Appendix  at  the  end  of  the 
Book;  and  a  vigorous  criticism  upon  tiie  case  of  Ciayards 
V.  Dethick,  by  Lord  Bramwell,  has,  with  his  Lordship's 
kind  permission,  been  printed  in  another  Appendix. 

The  Author  has  to  express  his  thanks  to  Mr.  Aspinall  for 
his  renewed  assistance  in  the  section  upon  "  Ships,"  and 
to  his  friend  Mr.  Perceval  Keep,  of  the  Midland  Circuit, 
for  much  valuable  help  throughout  the  preparation  of  this 
Edition. 

Horace  Smith. 

4,  Paper  Buildings, 
May,  1884. 


PREFACE  TO  THE  AMERICAN  EDITION. 


The  approval  which  this  work  has  received  in  England 
led  the  publishers  to  believe  that  an  American  edition  would 
be  useful  to  the  practitioner.  The  author  has  succeeded  in 
bringing  within  the  scope  of  a  single  volume,  a  treatise  of 
the  law  of  negligence  at  once  concise  and  com[)rehcnsive. 
The  method  of  treatment  of  the  subject  is  somewhat  dif- 
ferent from  that  adopted  by  later  American  writers.  The 
division  of  the  law  of  negligence  into  classes  is  not,  how- 
ever, without  an  analogy  in  American  law,  and  though  the 
tendency  of  our  courts  has  been  toward  rejecting  the  dis- 
tinction as  to  degrees  of  negligence,  it  cannot  be  said  that 
such  distinction  no  longer  exists.  The  work  of  the  editor 
appears  below  the  text  of  the  author,  and  occasionally  in 
his  foot-notes,  where  it  is  included  in  brackets.  Some 
three  thousand  cases  have  been  added  to  this  edition. 

W.  H.  W. 

Cincinnati,  O.,  July  15,  1886. 

(xi) 


PREFACE  TO  THE  SECOND  AMERICAN  EDITION. 


The  work  of  the  editor  preparing  the  second  Americau 
edition  of  this  well-known  legal- classic  consisted  of  revising 
the  editor's  notes  to  the  first  American  edition,  and  the 
index.  In  doing  this  many  of  the  notes  have  been  re- 
written so  as  to  state  the  present  law;  about  one  hundred 
and  twenty-five  pages  of  new  matter  has  been  added  and 
more  than  five  thousand  new  cases  used.  The  American 
law  is  stated  in  the  notes  below  the  text,  which  remains 
intact,  except  in  a  few  instances  in  which  it  was  deemed 
advisable  to  insert  the  American  cases  in  the  author's  foot- 
notes, where  they  are  included  in  brackets. 

It  has  been  the  aim  of  the  editor  to  leave  untouched  a 
text  which  students  will  find  to  be  the  clearest  exposition 
of  the  principles  of  the  law  of  Negligence  and  to  apply  those 
principles  with  important  American  cases.  At  the  same 
time  it  is  believed  that  the  large  quantity  of  material  which 
has  been,  brought  within  the  limits  of  one  volume,  the 
orderly  arrangement  of  the  notes  and  the  large  number  of 
cases,  either  cited  or  digested,  will  be  of  some  value  to 
practitioners. 

J.  A.  W. 

Memphis,  Tknn., 

February,  1896. 

(xiii) 


PUBLISHERS'  ANNOUNCEMENT. 


To  THE  Pkofession: 

Ten  years  ago  we  published  the  former  Edition  of  this 
book.  The  great  number  of  Cases  on  Negligence  which 
have  been  decided  during  that  interval,  have  been  carefully 
collated  and  interwoven  with  the  notes  of  the  former 
Edition,  whereby  the  body  of  the  book  has  been  increased 
from  481  pages  in  the  former  to  604  pages  in  this  edition. 

We  have  incorporated  in  the  piesent  work,  a  new  and 
somewhat  novel  feature  which  we  hope  will  invite  favorable 
comment.  In  the  Table  of  Citations,  we  have  given  in 
their  proper  alphabetical  order  and  distinctively  displayed 
in  capital  letters,  the  text-books  qnoted  both  by  the  Author 
and  Editors.  This  will  frequently  serve  as  a  guide  to  those 
text-books  upon  questions  wherein  the  principle  involved 
is  more  fully  discussed  in  some  special  treatise  than  the 
space  of  a  general  work  on  the  law  of  Negligence  will 
})ermit  us  to  amplify. 

THE  PUBLISHERS. 

(XV) 


TABLE  OF  CONTENTS. 


CHAPTER  I. 
Definition  and   Division  of  Subject. 

CHAPTER  II. 
Neglect  of  Duties  Requiring  Oudinary  Care. 

CHAPTER  III. 

Neglect  of  Duties  Requiring   Skill  or  more  than  Ordinary 

Care. 

CHAPTER  IV. 
Neglect  of  Duties  Requiring  less  than  Ordinary  Care. 

CHAl'TER  V. 
Contributory  Negligence. 

CHAPTER  VI. 
Presumptions  op  Negligence. 

CHAPTER  VII. 
Actions  for  Injuries  Causing  Death  (Lord  Campbell's  Act). 

CHAPTER  Vlir. 
Damages. 


(xvii) 


XVIU 


TABLE    OF    CONTENTS. 


CHAPTER  I. 

Definition  and  Division  of  Subject  . 

Duties  may  arise  of  contracts 

Or  may  be  imposed  by  law 

Privity  of  Contract  .... 

Liability  to  third  person  for  selling  dangerous 
goods      ...••• 

Distinction  as  to  liability  in  case  of  breach  of  con- 
tract and  breach  of  duty 

Division  of  duties  by  Roman  Law 

Degrees  of  negligence         .... 

Proximate  and  remote  cause 

Law  and  fact  ..... 


FACE 

1 
10 
10 
11 

11 

10-18 
21 
22-25 
26-45 
49-55 


CHAPTER   II. 


Neglect  of  Duties  Requiring  Ordinary  Care. 


Section    I.  —  Neglect    of  Duties  Requiring    Ordinary 
Care  by  Persons  in  General. 
Different  amount  of  care  under  different  circum- 
stances 
Duties  performed  for  benefit  of  both 
Employment  of  services  for  reward 
Master  and  servant 
Skilled  labor 

Manufacturers  and  vendors  of  goods 
Persons  on  premises 
Host  and  guest 
The  rule  of  the  road 
Injuries  on  the  highway 


56 
57 
57 
57 
57 
58 
62 
62 
63 
63 


Section  IL — Neglect  of  Duties  by  Owners  and  Occu- 
jners  of  Projyerty. 

Negligence  presupposes  equal  rights  .        1,  3,  4,  65,  70 

.  Rights  of  lateral  and  subjacent  support  .            5,  6,  66,  70 


TABLE    OF    CONTENTS. 


XIX 


PAOK 

Coming  upon  premises  by  invitat 

on 

71,  72 

Owner   owes   no  obligations   to 

trespassers    and 

licensees 

. 

74-78 

Setting  spring  guns  upon  premises 

79 

Excavations  on  or  near  the  highway 

80 

Use  of  fire  upon  land 

81-85 

Railway  fires 

86-92 

Statutes  in  relation  to 

(Ed.  n.) 

86 

Bringing  water  upon  land 

. 

92-101 

Surface  water 

92-96 

Diversion  of  water  . 

(Ed.  n.) 

97 

Pollution  of  water  . 

(Ed.  n.) 

97,  98 

Landlord  and  tenant 

. 

100 

Landlord  liable  for  a  nuisance 

101 

Liability   of   landlord   and  tenant  for  injuries  to 

third  person 

. 

102 

Liability  of  landlord  to  tenant 

(Ed.  n.) 

lOG 

Obligations  of   owners  of   cattle 

with  respect   to 

fencing 

. 

107-110 

Statutory  duty  of  railway  companies  to  fence 

110-11.5 

Sufficiency  of  fence 

(Ed.  n.) 

115 

Duty  to  keep  in  repair 

(Ed.  n.) 

117 

Proximate  cause 

(Ed.  n.) 

118 

Contributory  negligence 

(Ed.  n.) 

119 

Evidence 

(Ed.  n.) 

121 

Damages     . 

(Ed.  n.) 

122.  123 

Section  III. —  Neglect  of  Duties   by 

Owners  of  Ani- 

mals  . 

. 

123-133 

Liability  of  persons  having  control 

123 

Savage  animals 

.      (Ed.  n.)  123, 

124,  125 

Mischievous  animals,  scienter 

.     (Ed.  n.)  121, 

125,  12G 

Contributory  negligence 

(Ed.  n.) 

128 

Infectious  animals 

. 

130 

Keeping  of  dogs     . 

. 

131 

Proof  of  scienter     . 

.      (Ed.n.)12G, 

131,  132 

Injuries     by     dogs     to     sheep, 

statutory     lia- 

bility 

(Ed.  n.) 

132 

Separate  but  not  joint  liability  of  owners 


133 


XX  TABLE    OF    CONTENTS 


PAGE 


Section  IV.— Neglect  of  Duties  by  Owners  or  Control- 
lers of  Highways           .             .             .  133-148 
No  action  at  commoa  law  for  nou-repair  of  high- 
way           133,  134 

Statutory  duty  to  repair  highway  .            (Ed.  n.)  134,135 

Obstructions  in  highway     .             .            (Ed.  n.)  137,  138 

Lawful  interference,  ncghgence  in               .              .  139-141 

Duty  of  owner  of  land  adjoining     .              .              .  141 

Corporations  under  statutory  powers          .              .  141 
Liability     for     injuries    caused    by    excavations 

in                                                                 (Ed.  n.)  141 

Bridges — duty  to  keep  in  repair    .            (Ed.  n.)  143,144 
Canals   must   be   properly   constructed  and  kept 

under  control       .  .  .  .  .145,  147 

Section  V. —  Neglect  of  Duties   by   Corporations   {not 

Performing  Statutory  Duties')  .             .  148-153 

Discretionary  duties            ....  148 
Omission   of  municipal   corporations  to   exercise 

discretionary  powers       ....  149 

Acts  "ultra  vires       .....  150 
Private   corporations   cannot  set  up   plea   of,    in 

action  for  tort     .             .             .            (Ed.  n.)  150,151 

Section  VL — Neglect  of  Duties  by  Masters        .             .  153,154 

Relation  of  master  and  servant  must  exist              .  153 

SuB-sKCTiON  I. —  Breach  of  Duty  to  Servants     .             .  154-198 
Maslt^r  bound  to  take  reasonable  care  in  selection 

of  servants           .....  154, 155 

And  to  furnish  them  witli  adequate  materials          .  154,  155 
To   see   tliat   a   sufficient  number  are  employed, 

(Ed.  n.)  156,  1.59 

Does  not  warrant  competency  of  servants  (Ed.  n.)  157,  159 

Disobeying  orders                ....  158,  159 
Does    not   guarantee    servants    against  all   risks, 

(Ed.  n.)  160,  161 

Must  inform  them  of  extraordinary  risks  .             .  161 

Servant  assumes  risk  of  employment          .             .  163-165 


TABLE    OF    CUM  KM 


XXI 


Informing  master  of  defects                         .             .  170 

Promise  to  repair   .             .             .             .  172 
Master  not  liable  for  negligence  of  fellow-servant 

in  course  of  coiniuon  employment  .  .  178,  179 
Who  are  fi'llow-siTvaiits  .  .  (Ed.  n  )  17'J 
Who  arc  not  fellow-servants  .  (Ed.  n.)  18G 
Test  whether  one  is  fellow-servant  or  vice-prin- 
cipal ....  (Ed.  n.)  inO-197 
Persons  engaged  in  a  common  employment  (Ed.  n.)  197,  198 

ScB-sECTioN  II. —  Breach  of  Duty  to  Others       .             .  199-225 
Master  liable  fur  his  own  negligence           .              .  199 
And  the  negligence  of  his  servant              (Ed.  n.)  199-200 
When  acting  in  the  scope  of  his  employment         .  200 
Servant  acting  within  the  scope  of  his  employment  200-203 
Servant  not  acting  within  the  scope  of  his  employ- 
ment       ......  203 

Wanton  acts  of  servant       .              .             (Ed.  n.)  204-209 
Assaults  by  railroad  employe  upon  passengers, 

(Ed.  n.)  20C,  207 
Assaults  by  servants  of  charitable  corporations, 

(Ed.  n.)  208 

Master  liable  for  negligence  of  under  serv'ant  211 

Independent  contractor      .              .              .              .  213 

Owner  interfering  with  work           .             (Ed.  n.)  215,  21G 

Wi)cn  the  work  is  a  nuisance          .              .              .  219 

When  tlie  owner  has  a  duty  to  perform                   .  220 

Lial»ility  of  municipal  corporations            (Ed.  n.)  218 

Contractor  and  subcontractor          .             (Ed.  n.)  221,222 
Owner  of  real  property  liable  for  negligence  of 

"contractors"   .....  224 


ScB-sK<^TioN  III. —  Th^ Employer's  Liability  Act  1880 
The  old  law 

Contracting  out  of  the  Act 
Effect  of  the  act     . 
Who  are  workmen  . 
"Defects" 
**  Superintendence  " 


225-251 

22G 

226 

226,  227 

227-229 

228,  229,  230 

232 


XX 11 


TABLE    OF    CONTENTS. 


"  Manual  labor  "    . 

Not  giving  notice  of  defects 

Rules 

Contributory  negligence     . 

Notice  of  injury     . 

Statutes  affecting  employer  and  employe  (Ed.  n.)     243-251 


PAGE 

232 
235 
233 
235 
237-250 


Section  VII. —  yec/lect  of  Duties  by  Servants     . 
How  far  liable  to  third  parties 
One  servant  suing  fellow-servant  . 
Servant  hiring  laborers 

Section  VIII. —  Neglect  of  Duties  by  Public  Oncers 
Sheriff's  dut}'  toward  owner  of  goods  seized 


Section  IX. —  Neglect  of  Duties  by  Trustees 
Deflnition  of  trust 
Jurisdiction  of  court  of  chancery 
Ordinary  care 
Principal  duties  of  trustees 
Reducing  property  into  possession 
Safe  custody  of  property 
Investment  of  property 
Distribution  of  property    . 


251-253 
252 
252 
253 

253 
253 


254-265 
254 
254 
254 
257 
257 
257 

(Ed.n.)     261-263 
265 


CHAPTER  III. 

Ne<;lect  ok  Ddties  Requiring  More  Than  Ordinary 

Cake  ......  266 

Section  I.  —  Cirntuitons  Loan    {conunodatum^  in  the 

Case  of  Bailee  .  .  .  266 

Things  done  for  person's  own  advantage   .  .  267 

Persons    taking    money  for    admission  at  public 

places      ......  267 

Persons  who  undertake  to  show  skill  .  .  268 

Volunteer   ......  268 

Corporations  .....  270 

Dangerous  things    .....  270 


TAlU.i:    Oi'    CONTENTS. 


Will 


Dangerous  conduct  .... 

Statutory  duties      ..... 
Carriers       ...... 

Ski  rioN  II. —  Neglect  of  Duties  by   Owners  and  Occu- 
piers of  Real  Pro2^erty 
Owner  using  property  for  his  own  advantage 
In  an  ordinary  manner 
In  an  extraordinary  manner    . 
Railway  crossings 

Owner  inviting  person  on  premises     . 
For  liis  own  benefit 
For  the  benefit  of  the  other    . 
Whether  an  invitation  in  fact.  (Eil.  u.) 

Skction  III. —  Neglect  of  Duties  by  Onniers  of  Ditnrjnr- 
ons  Avimcds  . 
"Dangerous"  animals 
Scimder       ..... 

SiccTioN  IV. —  Neglect  of  Duties  by  Oivners  of  Danger 
Oils  Goods 
Use  of  Gun 
Fireworks  . 
Poisonous  drugs     . 
Explosive  materials 
Materials  otherwise  dangerous 

Skction  V. —  Neglect  of  Duties  by  Gets  Companies 
Neglecting  to  repair  pipes  . 
Bound  to  keep  in  repair     . 

Section  \I. —  Neglect  of  Statutory  Duties  by  Corpn 
rations  .... 
Reason  for  requiring  more  than  onlinary  care 
Imperative  duties   .... 
Penalty  no  bar  to  action 
Discretionary  duties 

Duty  not  only  to  make  works  bnt  to  take  care 
Interpretation  of  statutes  . 


270,  271 
272 
272 


-281 
274 
274 
27.1 
27(1 
277 
277 


2  79, 


278 
280 


282-28.5 
282,  28.3 
28.3-285 


285-289 

285,  286 

280 

287 

287 

287,  288 

289-291 
290 
290 


291-323 

291,  292 

292,  293 
293 
294 
294 

29.')-298 


XXIV 


TABLK    OF    CONTENTS. 


Corporations  taking  toll 

Liable  though  deriving  no  benefit  . 

Knowledge  of  defects 

Can  not  shift  responsibilit}' 

Only  liable  for  acts  of  servants  or  persons  under 

control  .... 

Liability  for  acts  of  contractor 
Not  liable  for  error  of  judgment    . 
Recovery  against  contractor 
Party  bringing  action  must  show  interest  . 
Injury  must  bo  within  particular  mischief. 
Liability  of  municiiial   corporations  with  respect 

to  highways     .  .  .  (Ed.  n  ) 


Change  of  grade  . 
iSewcrs  and  drains  . 
Awnings,  signs,  etc. 
Blasting  in  streets  . 
Coasting  in  streets  . 
Sidewalks  . 
Contributory  negligence 


(Ed.  n.) 
(Ed.  n.) 
(Ed.n.) 
(Ed.n.) 
(Ed.n.) 
(Ed.n.) 


Section-  VIL — Negb^rt  of  Duties  by  Directors  of  Public 


Companies 
Liability  of  Directors 
More  than  ordinary'  care     . 
Bill  in  cijuity 
Suit  by  li(}uidator  . 
Liability  of  sleeping  directors 
Action  by  shareholders 
Action  against  promoters  . 


Section  VIIL —  Carriers  —  Railway  Companies 
Insurers,  act  of  God 
(ioods  of  peculiar  character 
Not  insurer  after  arrival  of  goods  . 
Railway  companies  common  carriers 
Carriers'  Act  .... 

Tender  of  reasonable  sum  . 


PAGE 

2yy 

299 
300 
300 

300 
300,  309 

301 
314,  315 

323 

323 

301 
301 
304 
305 
305 
306 
306 


.  323-333 
.  323-325 
325 
326 
327 
.  328,  332 
332 
333 

.     333-410 

333 

333,  3.34,  333 

.  334,  340 
334 

.  334,  335 
336 


Limitation  of  liability  by  express  contract  (Ed.  n.)  312,  344 


TABLE   OK   CONTENTS. 


XXV 


Just  and  reasonable  conditions 
Unrc:i6on:ihle  conditions 
Transporlntion  of  live  stock 
Railway  and  Canal  Tiallic  Act 
Rlt'asuro  of  damages 
Forwarding  goods  beyond  line 
Fussengers'  baggage 
Warehouseman  of  baggage 
Conditions,  knowledge  of  depositor 
Carriers  of  passengers 
Use  of  premises 
Faulty  construction 
Injury  by  something  extraneous 
Railwa}'  premises    . 
Use  of  trains  and  carriages 
Sleeping  car  companies 


I'AOE 

(Ed.  n.)  343,  .{47 

(Ed.  n.)  34« 

(Ed.  n.)  .{49,  351 

349 

(Ed.  n.)  35;i,  350,  358 

(Ed.  n.)  358,  359 

(Ed.  n.)  360,  3G3 

303 

3G5 

(E.l.  11.)  367,  373 

388 

(Ed.  n.)  389,  391,  395 

391 

(Ed.  n.)  393 

39G 

(Ed.  n.)    401,  411 


Section  IX. — Neglect  of  Duties  hy  Innkeepers 


Not  an  insurer 

Loss  prima  facie  evidence 

Loss  V)}'  burglary     . 

Loss  liy  fire 

Contributory  negligence 

Limitation  of  liability  by  statute 


.  -no- 1 19 

(Ed.  n.)  110,  111 
412 

(Ed.  n.)  412,414 

(Ed.  n.)  412,414 

(Ed.  n.)  414 

(Ed.  n.)  4  15,  419 


CTiON   X. —  Neglect    of  Duties    hy    Physicians    and 


Surgeons 
Skill  required 
Acting  gratuitously 
Surgeons  not  actual  insurers 
Unqualified  person 
Criminal  liability     . 
Contributory  negligence 


.     419-427 

(Ed.  n.)  420,  422,  424 

42(1 

421 

(Ed.n.)    421,  422 

(Ed.n.)     423,  424 

(E.l.n.)  42t; 


Section  XL — Neglect  of  Duties  by  Attorneys    .  .     427-4  10 

Skill  required  .....  427 

Liable    for     negligence    of    agent,    partner,    and 

clerk         ....     (Ed.  n.)  429,  431,  433 
Instances  of  negligence      .  .  (Ed.  n.)  429 


XXVI 


TABLE    OF    CONTENTS. 


Monej'  collected 
Power  to  receive  mone}' 
Action  for  fees 


PAGE 

(Ed.n.)  432 

(Ed.n.)  433 

(Ed.n.)    432,434 


Section  XII. —  Neglect  of  Duties  hy  Bankers   . 
Things  intrusted  to  them  for  safe  custody 
Duties  as  bankers  .  .  .  •  • 

Skill  required  ..... 

Liabilit}'  for  paying  forged  checks  .  (Ed.  n  ) 

Liabilitv  for   negligence   of  correspondent   bank, 

(Ed.n.) 
For  negligence  of  notary   .  .  (Ed.  n.) 

Skction  XIII.—  Neglect  of  Duties  by  Stockbrokers 

Section  XIV. —  Neglect  of  Duties  by  Public  Officers 

Ministerial  Duties    .  .  .  (Ed.n.) 

(Ed.n.) 


Discretionary  or  judicial  duties 

.Skill  required 

In  selecting  subordinates    . 

Duties  of  general  pul)lic  nature 

r^»*/s«*-public  nature 

Delegated  authority 

Onicers    of    courts  of  justice,    notaries,   sheriffs, 

(Ed.  n.)  447,  448,  450 
Judges         ....  (Ed.n.)  451 

Notaries  Public       .  .  .  (Ed.n.)  451 

Sheriffs        ....  (Ed.n.)  453 


440-444 

440 

440,  441 

440,  441 

441,  442 

443 
443 

444 

445-455 
445,  449 

445,  449 
445 
446 
446 
446 

446,  447 


CHAPTER  IV.  . 

Nkglkct  ok  Ddties  Rkquiring    Less  than  Ordinary 
Care  ..... 
Gratuitous  Depositaries 
Gratuitous  loan  in  case  of  the  bailor 
Gratuitijus  dedication  of  highway  . 
(ittituitous  serN'ices 
Volunteer    .... 
Licensee      .... 
Trespa-sser  .... 


456 
456 
457 
457 
457,  458 
457 
457 
457 


TABLE   OF    CONTENTS.  X.XVii 


CHArTKR  V 


vxr.y. 

(E.l.n.) 

4:>H,  KJO 

451) 

. 

4r>'.» 

(Ed.n.) 

463 

s  negligence 

17H 

4  7(t 

4  7H,  479 

(E.l.n.) 

485 

(E.l.n.) 

493 

(Ed.n.)  4'Jo, 

;')U7,  514 

(Ed.n.) 

514 

(Ed.  u.) 

5  I H 

)NTKlBUTORY   NeGLIGENCK 

Definition    . 

Proximate  cause 

Comparative  negligence 

Plaintiff  need  not  anticipate  defendniiLs  negligence 

IJurden  of  proof 

Plaintiff  voluntarily  incurring  danger 

Escaping  danger     . 

Master  and  servant 

Imputed  negligence 

Children      ,  .  '   . 

Trespassers 


CHAPTER  VI. 

PitEsiMPTioN  OF  Cauk  ou  Xegligence  (Res  Ipsa  Loqui- 

tuk)  .......  522 

Happening  of  accident         .  .  (E<l.n.)    522,524 

Cases  resting  in  contract  and  those  not  resting  in 

contract  ....  (Ed.n.)  520 


CHAPTER    VII. 

Action  for  In.ilkies  Causing  Death    .             .             .  535 

DriiiiMges     ......  535 

.sijilutes      .              .              .                (^FA.  n.)  et  seq.  dlM 


CHAPTER  VII 


Da.mauks 

Breach  of  contract 
Telegraph  company 
Personal  injuries     . 


587 

591 

591-595 

595 


THE  LAW  OF  NEGLIGENCE. 


CIIAPTEK    I. 

DEFINITION    AND    DIVISION    OF  SUBJECT. 

Negligence  (1)  io  law  is  a  breach  of  duty  (2)  unintcn- 
tionul  (3)  and  proximately  (4)  producing  injury  (5)  to 
another  possessing  equal  rights  (6).  It  will  bo  convenient 
at  once  to  explain  the  terms  of  the  above  definition  in  the 
order  in  which  they  stand  in  the  sentence. 

(1)  The  term  "  negligence  "  perhaps  more  accurately 
describes  a  state  of  mind,  or  an  absence  of  prudence  and 
forethought;  but  the  law  does  not  deal  with  a  man's  state 
of  mind,  but  with  the  acts  which  flow  from  it,  and  we  arc 
only  proposing  to  trout  of  that  which  is  negligence  in  law. 


Negligence,  Defined. — The  terra  *'  Negligence  "  has  been  defined  by 
Taiious  authorities.     Illustrations:  "Failure  to  do  what  a  reasonable 
and  prudent  person  would  ordinarily  have  done  under  the  circumstances 
of  the  situation,  or  doing  what  such  a  person  would  not  have  done."- 
Anderson's  Die.  of  Law,  p.  703. 

"The  omission  to  do  soraelhlng  which  a  reasonable  man,  guided  by 
those  considerations  which  ordinarily  n-gulate  the  conduct  of  human 
affairs,  would  do,  or  doing  soraothiug  which  a  prudent  and  reasonable 
man  would  not  do.  It  must  be  determined  in  all  cases  by  reference  to 
the  situation  and  knowledge  of  the  parties  and  all  the  attendant  circum- 
stances. —  Black's  Law  Die.  807. 

"  The  failure  to  observe  for  the  protection  of  the  Interests  of  another 
person,  that  degree  of  care,  precaution  and  vigilance  which  the  circum- 
stances justly  demand,  whereby  such  other  person  suffers  Injury."  — 
Cooley  on  Torts  (2d  ed.),  p.  752;  Brown  r.  Congress,  etc.,  St.  K.  Co., 
49  Mich.  153. 

"  Negligence  is  the  failure  to  do  what  a  reasonable  and  prudent  per- 

1 


2  DEFINITION   AND    DIVISION    OF    SUBJECT. 

[2]  (2)  Legal  duties,  and  breaches  of  which  the  law  takes 
cognizance,  are  here  spoken  of.  The  law  considers  injurious 
acts  to  be  in  general  "  culpable  "  which  are  such  as  a 
reasonably  careful  man  would  foresee  might  be  productive 
of  injury,  and  which  he  would  abstain  from  doing  (a). 
The  modes  in  which  duties  may  arise,  and  what  amount  of 
care  is  required  in  the  performance  of  them,  will  be  consid- 
ered subsequently  at  greater  length,  but  at  present  it  is 
only  necessary  to    state  that    a    duty  must   be    shown  to 

(a)  Blyth  r. Birmingham  Waterworks  W.  Rep.  453;  Atwater  v.  Town  of  Vet- 
Co.,  11  Exch.  781.  [Kay  v.  Pennsylva-  eran,  6  N.  Y.  S,  Rep.  907;  City  of  Aastln 
nia  R.  Co.  G5  Pa.  St.  269;  R.  R.  Co.  v.  v.  Ritz,  72  Tex.  301;  9  S.  W.  Rep.  884; 
Jones,  O.l  U.  S.  441 ;  Hankins  v.  Wat-  Kentucky  Cent.  R.  Co.  v.  Gastineau,  88 
klna,  77  Ilun,  360;  28  N.  Y.  S.  Rep.  867;  Ky.  119.] 
Alexander  r.  Ilumber,  86  Ky.  565;  6  S. 


6on  would  ordinarily  have  done  under  the  circumstances  of  the  situation; 
or  doing  what  such  a  person  under  the  existing  circumstances  would  not 
have  done."  —  R.  R.  Co.  v.  Jones,  95  U.  S.  441,  Swayne,  J. 

"Negligence  has  been  briefly  defined  to  be  the  absence  of  care  accord- 
ing to  circumstances."  —  Vaughn  v.  Taff  Vale  R.  Co.,  5  Hurl.  &  N.  679; 
Philadelphia,  etc.,  R.  Co.  v.  Stinger,  78  Pa.  St.  225. 

"  The  opposite  of  care  and  prudence  —  the  omission  to  use  the  means 
reasonably  necessary  to  avoid  injury  to  others."  — Great  Western  R.  Co. 
V.  Haworth,  39  111.  353. 

"  A  failure  of  duty  generally  unintentional,  but  sometimes  inten- 
tional." —  Thompson  on  Neg.,  Preface. 

"  Negligence  consists  in  the  doing  of  something,  or  the  omitting  to 
do  something  which  a  person  of  ordinary  prudence  and  care  would  not 
have  done,  or  would  not  have  omitted  to  do,  under  like  or  similar  cir- 
cumstances.—  Galloway  r.  Chicago,  etc.,  Ry.  Co.,  87  la.  458;  54  N.  W. 
Rep.  447. 

"  Negligence!"  is  "  that  lack  of  care  which  an  ordinarily  prudent  man 
would  exercise  in  the  management  of  his  own  affairs." — Texas  &  P. 
Ry.  Co.  V.  Gorman,  2  Tox.  Civ.  App.  144;  21  S.  W.  Rep.  158. 

"  Negligence  Is  that  omission  to  do  something  which  a  reasonable 
man,  guided  upon  those  considerations  which  ordinarily  regulate  the 
conduct  of  human  aflEairs,  would  do,  or  doing  something  which  a  prudent 
and  reafjonable  man  would  not  do."  —  Webb's  Pollock  on  Torts,  p.  537. 
See  Editor's  notes  where  numerous  cases  are  collated.  See,  also,  Harri- 
raan».  Plttflburg,etc.,R.  Co.,45  0hio  St.  11;  12  N.  C.  Rep.  453;  Holmes  u. 
Alklson,  etc.,  R.  Co.,  48  Mo.  App.  79;  McDonald  w.  International  &  G. 
N.  Ry.  Co.,  8G  Tex.  1  ;  '12  S.  W.  Rep.  939. 


DEFINITIOX    AND    JMVKSION    OF    SUHTECT.  3 

have  been  broken.  The  pliiintifT  must  show  wh:it  the  duty 
WHS,  and  how  it  w:is  broken.  It  is  not  suiHeient  that  u 
careless  act  has  been  done  by  the  defendant  by  which  tlic 
phiiiititr  has  sustained  loss  (6).  The  liability  for  an  omission 
to  do  something  depends  entirely  on  the  extent  to  which  a 
duty  is  imposed  to  cause  that  thing  to  be  done  (c).  It  can- 
not be  preilicated  of  any  particuhir  act  that  it  is/jtrse  negli- 
gent; it  is  only  so  because  it  is  a  breach  of  duty,  so  that 
an  act  done  by  one  man  may  bo  negligent  which,  done  by 
another,  would  not  be  so,  because  he  had  no  duty  with 
respect  to  it.  Sometimes  the  duty  may  have  arisen  out 
of  a  contract  between  the  parties  ;  but  it  is  not  necessary 
that  it  should  have  so  arisen.  It  may  arise  out  of  the  rela- 
tive situation  of  the  parties,  or  be  imposed  by  statute,  as  we 
shall  shortly  see  (d). 

[3]  (3)  If  the  act  be  intentional  (e)  it  becomes  fraudulent 
or  criminal,  or  it  may  be  a  trespass,  and  it  is  not  proposed 
to  deal  with  such  questions  in  the  present  treatise  {/). 

(4)1  shall  defer  for  the  present  the  consideration  at 
length  of  the  word  "  proximately  "  (^),  as  the  subject  is 
one  of  considerable  difficulty,  and  the  cases  which  illustrate 
it  are  numerous.  It  is  suilicicnt  here  to  explain  the  mean- 
ing of  the  word  in  the  detinition  by  saying  that  in  order  to 

(6)  Sec  Daniel  v.  Met.  Ry.  Co.,  L.  R.I5  49  L.  J.  C.  A.  "l.'?;— [Sutton  v.  Bonnctt, 
E.  A  I.  Ap|).  «.'>;  *)  I>.    J.  C.  P.  121;  per  114  Ind.  243;  IC  N.  E.  Hep.  180.] 
Wllle«,  J.,  in  Uautrct  v.  Egcrton,  L.  K.  2  (r)  Per  Hlackbuin,  J.,  Mersey  Docks 
C.  P.  874  ;  .16  L.  J.  C.  P.  191 ;  per  Uyles,  J.,  v.  Gibbs,  L.  li.  1  II.  L.,  p.  1 15  ;  iri  L.  J.  Kx. 
in  ColllB  V.  Scldon,  L.  U.  3  C.  P.  498;  37  22.1;— [Olcsoii  v.  City  of  Plattsniouth,  35 
L.  J.  C.  1".  2.'«;  Hulnian  v.  Furness  Ky.  Neb.  153;  52  X.  W.  Kcp.  818]. 
Co.,  32  L.  T.  N.  S.  430.    G.  A  Co.  being  in-  (rf)  Collctt  r.  L.  &  N.  W.  Uy.  Co..  IB  Q, 
debtcd  to  the  plaintiffs  gave  a  chciiuo  to  B.  984.    [Kahl  v.  Love,  35  N.  J.  L.  5.] 
their  order;  and  the  iilaintiffs,  willi  the            (e)  "Intentional  negligence," a  plirnso 
greatest  possible  negligence,  let  a  thief  sometimes  used,  seems  to  Involve  a  con- 
have   an   opportunity  of   forging  their  tradlction  In  terms.    So  also  the  words 
order.    The  iliicf  got  an  innocent  person  "willful    negligence"    are    often  used, 
to  cash  the  cheque,  who  i)a88cd  It  to  the  where.  If  by  "  willful  "  Is  meant  "  inten- 
defcndant.    The  plaintiffs  sued  the  do-  tlonal,"  the  same  objection  applies;  but 
fendant  for  the  cheque,  and  the  defend-  If   by   "willful"    only    recklessness  is 
ant  pleaded  negligence  in  the  plaintiffs.  meant  the  phrase  "  willful  negligence" 
The  plea  was  held    demurrable,  as  the  seems  unobjcctlunablo. 
plaintiffs  had  no  duty  towards  the  de-            (/)  See  Wharton  on  Negligence, «.  132. 
fendant    to    take   care  of   the  cheque.            (_g)  See  pott. 
I'alent  Safety  Gun  Cotton  Co.  v.  Wilson, 


4  DEFINITION    AND    DIVISION   OP   SUBJECT. 

make  a  persou  liable  for  a  culpable  breach  of  duty  produc- 
ing injury  to  another,  it  must  be  shown  that  the  damage 
was  the  ordinary  and  probable  consequence  of  such  breach, 
or,  in  other  words,  that  the  negligent  act  was  the  "  proxi- 
mate "  cause  of  the  damage. 

(5)  In  the  word  "  injury  "  I  include  "  damage.'*  Mr. 
Broom,  in  his  Commentaries,  5th  ed.,  p.  368,  says  that  bare 
negligence  unproductive  of  damages  gives  no  right  of  action. 
An  *'  injury"  must  be  produced  by  the  negligent  act  — 
that  is  to  say,  there  must  be  something  more  than  mere 
damage  done,  something  injurious  to  the  rights  of  another, 
and  this  is  involved  in  the  '*  breach  of  duty,"  for  the 
breach  of  a  legal  duty  is  the  invasion  of  the  corresponding 
right. 

(6)  The  next  few  words  of  the  definition  require  some 
attention,  and  I  am  not  aware  that  the  proposition  con- 
tained in  them  can  be  supported  by  any  distinct  authority, 
but  it  appears  to  me  to  be  correct.  In  Deane  v.  Clayton, 
7  Taunt.  48H,  Burrough,  J.,  at  p.  499,  says  — "I  conceive 
that  every  person  is  protected  by  this  rule  {sicutere  tuo) 
who  has  a  right  equal  to  that  of  him  who  does  the  act,  and 
who  is  injured,  without  his  default,  in  the  exercise  of  that 
right."  In  the  last  edition  of  "  Addison  on  Torts,"  by  Mr. 
Cave,  Q.  C.  (now  Mr.  Justice  Cave)  (pp.  17,  18,  19,  20), 
[4]  it  is  said  that  the  person  injured  must  be  in  the  exercise 
of  an  available  right.  Now,  if  the  law  regarded  the  right  as 
inferior,  it  could  not  avail,  and  if  it  regarded  the  right  as 
superior,  no  negligence  need  be  alleged.  The  plaintiff's 
right  must  be  of  that  sort  which  he  is  able  to  oppose  to  the 
right  which  is  being  exercised  by  the  defendant,  and  make 
available  against  him  by  saying —  ♦'  It  is  true  you  are  law- 
fully exercising  your  right,  but  I  am  in  the  exercise  of  a  right 
which  I  atn  able  to  oppose  to  yours,  and  you  must  there- 
fore exercise  care  towards  me"  {h).     The  proposition  is 

(*)  Sec  aUo  prr  IJylcH,  J.,  In  Colllsv.  rights  is  that  of  the  right  to  a  party  wall 
Beldeo,  tupra.    A  clear  instance  of  cqaal      and  the  whole  question  ae  to  the  user  of 


LATERAL  AND  SUBJACENT  SUPPORT.  .) 

that  tlio  question  of  negligence  only  arises  where  ihe  rights 
of  the  parlies  are  equal,  or,  in  other  wonis,  where  the 
rights  are  unequal  the  question  of  nogligenco  does  not 
arise.  If  a  man  has  no  right  to  do  an  act,  or  his  right  to 
do  such  act  is  subordinated  to  the  right  of  another  ( which 
is  the  same  thing,  for  then  relatively  he  has  no  right),  ho 
is  liable  to  an  action  for  injury  caused  by  the  commission 
of  the  act,  whether  carelessly  done  or  not  (t);  but  such 
action  would  be  in  the  nature  of  ''trespass,"  and  not  of 
"negligence."  But  where  the  rights  are  ecjual,  and  one 
party  in  the  very  exercise  of  his  undisputed  right  acts  care- 
lessly, and  so  injures  the  rights  of  another,  the  action  of 
negligence  arises.  The  question,  when  are  the  rights  e(iual, 
and  when  subordinated,  can  only  be  answered  by  saying; 
when  the  law  thinks  it  expedient  that  it  should  be  so. 
Thus,  in  the  case  of  two  persons  driving  along  a  highway, 
the  rights  are  equal ;  and,  if  one  or  the  other  neglects  his  duty 
and  so  injures  the  other's  right,  an  action  of  negligence 
arises.  *'  It  is  clear,"  said  Lord  Coleridge,  in  a  recent 
case,  ♦'  that  where  both  parties  arc  upon  the  highway, 
where  each  of  them  has  a  right  to  be,  and  one  of  them  is 
injured  by  the  trespass  {qucere^  *♦  act")  of  an  animal  be- 
[5]  longing  to  the  other,  he  must  in  order  to  maintain  his 
action,  show  that  the  trespass  {quccre,  *'  act")  was  owing 
to  the  negligence  of  the  other  "  {j).  On  the  other  hand, 
if  a  man  digs  a  hole  in  my  land,  or  if,  in  digging  a  hole 
near  the  boundary,  he  lets  down  my  lands,  it  is  a  tort ;  and 
further,  if  an  adjoining  owner  digs  a  hole  near  to  my  ancient 
house,  the  law  subordinates  his  right  to  dig  the  hole  to  my 
right  to  possess  my  house  in  safety,  and  the  action  is  a  sim- 
ple action  of  tort^  and  requires  no  allegation  of  negligence 

U  by  cither  party  Is  one  of  the  excrclso  42<5;  Ncedham  v.  Lonievlllo  ft  N.  R.  Co., 

of  reaaonablo  care,  see  UuKhes  v.  Per-  85  Ky.  42:t;  3  S.  W.  Uep.  797;  11  S.  W.  Rep. 

oival.SApp.  Gait.  443.    [Ordinary  care  Is  806;  Louisville  &  N.  R.  Co.  r.  Gowcr,  I 

that  de^co  of  care  which  is  exercised  Pick.  (Tenn.)4t)6;  3  S.  W.  Itop.  8:24.] 

by   ordinary    prudent     persons    nudor  (e)  Seo  Add.  on  Torts,  5th  cd.,p.  330, 

similar  clrcatn:4tanceB.    Richmond  &  D.  noto(c). 

U.  Co.  V.  Howard,  79  Ga.  44;  3  8.  E.  Rep.  (>  )  TiUott  r.  Ward,  10  Q.  B.  D.  17. 


6  DEFINITION    AND    DIVISION    OF   SUBJECT. 

to  support  it  (A),  and  the  same  holds  good  of  a  house  which 
has  boon  built  twenty  years  (I).  The  reason  why  the  law 
subordinates  his  right  to  mine  is  because  it  is  expedient  to 
do  so.  But  if  an  adjoining  owner  digs  a  hole  near  to  my 
modem  house,  which  has  not  been  built  twenty  years,  I 
have  no  dominant  right,  nor  has  he  (see  this  discussed  posty 
Ch.  II.,  8.  2,  tit.  Owners  of  Property)  ;  but  my  right  to 
have  my  house  undisturbed  by  him  is  equal  to  his  right  to 
dig  in  the  boundary,  and  the  question  of  negligence  or  no 
negligence  in  such  digging  immediately  arises.  Each  party 
has  to  use  due  care  —  the  land-owner  that  he  digs  care- 
fully, and  the  householder  that  he  builds  carefully.  If  a 
man  built  a  house  close  to  his  boundary  so  negligently  that 
the  soil  of  the  adjoining  owner,  exercising  all  possible  care, 

(it)    See  the    flrsl  question  asked  In  (I)  See  the  second  question  asked  In 

AniTOs  V.  Ualton,  infra.  Angas  v.  Dalton,  infra. 


Lateral  and  Subjacent  Support. —  General  Principles. — The  owner  of 
land  has  the  rifiht  to  the  lateral  support  of  the  natural  soil  from  the  land 
of  his  neighbor.— Farrand  v.  Marshall,  21  Barb.  409;  19  id.  380;  Gilmore 
V.  DriscoU,  122  Mass.  199:  O'Neil  v.  Harkins,  8  Bush,  653;  1  Thompson 
on  Neg.,  p.  274;  Ryckman  v.  Gillis,  57  N.  Y.  68;  Wharton  on  Neg.,  § 
929;  Morrison  v.  Lathimer,  51  Ga.  519;  Shearman  &  Redfield  on  Neg., 
§  496;  Shafer  v.  Wilson,  44  Md.  268;  Thurston  v.  Hancock,  12  Mass. 
220;  Foley  v.  Wyeth,  2  Allen,  131;  Busby  v.  Holthaus,  46  Mo.  161; 
Quincy  v.  Jones,  76  111.  231 ;  Thomas  v.  Allentown,  28  N.  J.  Eq.  77;  Rich- 
ardHon  v.  Verm.  Cent.  R.  Co.,  25  Vt.  465;  Stevenson  v.  Wallace,  27  Gratt. 
77;  Schultz  v.  Bower  (Minn.),  69  N.  W.  Rep.  631;  United  States  v. 
Peachy,  36  i'id.  Rep.  160;  and  to  subjacent  support,  Mickle  v.  Douglass, 
75  la.  78;  39  N.  W.  Rep.  198;  Williams  v.  Hay,  120  Pa.  St.  486;  14  St. 
Rc'p.  879  (see  Subjacent  Support,  infra) ;  but  not  when  the  land  is  bur- 
dened with  buildiutjs  or  other  improvements.  — Quincy  v,  Jones,  76  111. 
231;  McGulre  v.  Grant,  25  N.  J.  L.  356;  O'Connor  v.  Pittsburg,  18  Pa. 
St.  187;  Panton  v.  Holland,  17  Johns.  92;  Beard  v.  Murphy,  37  Vt.  99; 
Union  V.  Abeles,  35  Kan.  85;  Sullivan  w.  Zeiner,  98  Cal.  346;  33Pac.  Rep. 
209;  LoulHville  &  N.  R.  Co.  v.  Bonhayo,  94  Ky.  67;  21  S.  W.  Rep,  626; 
Victor  MIn.  Co.  v.  Morning  Star  Min.  Co.,  60  Mo.  App.  625. 

The  verbal  declarations  of  a  defendant  during  the  course  of  the  work 
arc  not  binding.  — lioland  v.  Murphy,  66  Tex.  634;  1  S.  W.  Rep.  658. 

yvr*rr/;)(ton.  —  The  ri;;ht  to  the  support  of  buildings  may  be  acquired 
by  preacrlptlon.  — Quincy  v.  Jones,  76  111.  231;  Stevenson  v.  Wallace, 


LATERAL  AND  SUBJACENT  SUPPORT.  7 

[G]  was  injured,  I  concliulo  such  adjoining  owner  migiit 
liavo  an  action  for  negligence  against  the  householder  (m). 

(w)  But  HOC  Llndlcy,  J.,  in  Aniens  i\  lie,    though    practically    none     can    ho 

Daltou,  C  App.  Oas.  740,  ',61,  764 ;  h  ry,  J.,  brought.    See  also  I^oUd  r.  llolmo,  1  A. 

p.  77i;  Howun,.!.,  p.  784;  the  Lord  (Mian-  &  K.  4'J;J.    If  Iho  houBO  fell  on   the  ad- 

collor,  p.  7%.    All  these  learned  Judges  joining  owner's   land   there  would  also 

say  that  In  prlnclplo  an  action  would  arise  a  right  of  action  for  trcspaHs. 

27  Gratt.  77;  Thurston  v.  Hancock,  12  Mass.  220,  and  cases  cited  above. 
It  has  been  questioned  in  some  States  whether  a  prescriptive  right  to  the 
support  of  buildings  can  be  acciuired. —  Klchart  v.  Scott,  7  Watts,  400; 
Gilmore  v.  Drlscoll,  122  Mass.  I'JO;  Mitchell©.  Rome,  49  Ga.  19  (where 
the  ri«;ht  is  denied);  Napier  t?.  Bulwinkle,  5  Rich.  311.  See  llieatt  v. 
Morris,  10  Ohio  St.  530;  Sullivan  v.  Zeiner,  98  Cal.  346;  33  Pac. 
Rep. 210. 

In  the  case  of  Tunstall  v.  Christian  (80  Va.  1;  56  Am.  Rep.  581),  the 
court  said :  "  How  under  the  circumstances  mentioned  can  there  be  said 
to  be  an  adverse  user  of  another's  property,  or  how  can  the  acquiescence 
of  one  In  an  act  be  implied  who  has  neither  the  right  nor  the  power 
to  prevent  it?  ♦  *  *  How  can  a  man  be  reasonably  required  to 
improve  his  own  property  in  order  to  preserve  his  right  respecting  it." 
See  Godilard's  Law  of  Easement,  Bennett's  ed.,  p.  231,  where  it  is 
said  that  the  same  reasons  apply  in  such  case  as  in  those  in  which  the 
doctrine  of  prescriptive  right  to  light  and  air  is  rejected.  An  excep- 
tion is  also  recognized  in  cases  where  the  title  to  atljoining  parcels  is 
derived  from  a  common  owner. —  Stevenson  v.  Wallace,  27  Gratt.  77; 
McGulre  v.  Grant,  25  N.  J.  L.  350;  United  States  v.  Appletou,  I  Sumn. 
492;  La  Sala  v.  Holbrook,  4  Paige,  1C9;  Montgomery  v.  Trustees  of 
Augusta,  70  Ga.  38;  Henry  v.  Koch,  80  Ky.  391  (party  wall);  Partridge  v. 
Gilbert,  15  N.  Y.  001;  Rogers  v.  Slnsheimer,  50  N.  Y.  64G.  The  owner 
docs  not  lose  the  right  to  the  lateral  support  of  the  natural  soil  by  plac- 
ing buildings  upon  It,  If  the  soil  would  have  sunk  in  consequence  of 
excavations  without  the  weight  of  the  structures.—  Stevenson  v.  Wal- 
lace, 27  Gratt.  77.  There  must  be  an  appreciable  damage  to  entitle  one 
to  a  rigiit  of  action  for  removing  the  lateral  support. —  Smith  v.  Thack- 
erah,  L.  R.  1  C.  P.  5C4;  12  Jur.  (n.  a.)  545;  35  L.  J.  C.  P.  270;  1  Harr. 
&R.  Clo. 

Negligence.—  Though  the  right  to  the  support  of  the  land  when  bur- 
dened with  buildings  has  not  been  acquired,  the  adjacent  owner  mui^t 
use  ordinary  skill  to  prevent  Injuring  his  neighbor,  and  if  in  making  an 
excavation,  ho  conduct  the  work  so  negligently  as  to  cause  damage  to 
his  neighbor's  soil,  or  buildings,  he  will  be  held  liable  thenfor.— McGuire 
V.  Grant,  25  N.  J.  L.  350;  Thomas  v.  Allentown,  28  N.  J.  Eq.  77;  Charless 
V.  Rankin,  23  Mo.  500 ;  Quincy  r.  Jones,  70  III.  231 ;  Shafer  u.  Wilson,  44 
Md.  268;  McMillin  v.  Staples,  36  la.  532;  Stevenson  v.  Wallace,  27  Gratt. 


8  DEFINITION   AND   DIVISION   OF   SUBJECT. 

[7]  Having  now  shortly  explained  the  meaning  of  our 
(letiiiition,  which  it  may  not  be  iucouveuient  to  repeat  at  this 
[8]   place — "Negligence  in  law  is  a  breach  of  duty  uninten- 

77;  Boothby  v.  Androscoggin,  51  Me.  318;  Richardson  v.  E.  Co.,  25  Vt 
463;  Foley  v.  Wyeth,  2  Allen,  131;  Shrieve  v.  Stokes,  8  B.  Mon.  453; 
Kichart  v.  Scott,  7  Watts,  4G0;  Baltimore  v.  Eeaney,  42  Md.  117;  Austin  v 
Hudson  River  R.  Co.,  25  N.  Y.334;  Mitchell  v.  City  of  Rome,  49  Ga.  19 
Schwartz  v.  Uaegling,  55  111.  342;  Dixon  v.  Wilkinson,  2  McArthur,  425 
Moellering  r.  Evans,  121  Ind.  195;  22  N.  C.  Rep.  989;  Larson  v.  Metro 
politan  St.  Ry.  Co.,  110  Mo.  234;  19  S.W.Rep.  416;  Tunstall  u.  Christian, 
80  Va.  1;  5G  Am.  Rep.  581,  supra. 

He  must,  therefore,  give  reasonable  notice  to  his  neighbor  in  such 
case,  so  that  the  latter  may  protect  his  building. —  La  Sala  v.  Holbrook,  4 
Paige,  1C9;  Brown  ».  Werner,  40  Md.  15;  Shafer  v.  Wilson,  44  Md.  268; 
City  of  Covington  v.  Geylor,  93  Ky.  275;  19  S.  W.  Rep.  741.  The  rule 
requiring  notice  was  definitely  settled  in  the  late  case  of  Schultz  v. 
Dyers,  53  N.  J.  L.  442;  22  Atl.  Rep,  514;  44  Abb.  L.  J.  290. 

In  some  States  this  right  is  regulated  by  statute.  In  Ohio  the  owner 
may  dig  nine  feet  below  the  curb  of  the  street  on  which  the  property 
abuts,  or  where  there  is  no  curb,  nine  feet  below  the  surface  of  the  adjoin- 
ing lot,  or  to  the  depth  of  the  foundation  walls  of  the  adjoining  build- 
ing, and  is  under  no  obligation  to  support  the  walls  of  the  adjoining 
building  when  excavating  to  the  statutory  depth. —  Ohio  R.  S.  1880,  §§ 
2C76,  2G77;  Burkhardt  v.  Hanley,  23  Ohio  St.  558;  McMillen  v.  Watt,  27 
Ohio  St.  300.  See  Civil  Code,  Cal.,  §  832;  First  Nat.  Bank  v.  Villegia, 
92Cal.  9C;  28  Pac.  Rep.  97;  Aston  v.  Nolan,  63  Cal.  269;  also  Laws 
N.  Y.  1882,  c.  410,  §  474;  Ketchum  v.  Newman,  116  N.  Y.  422;  22 
N.  E.  Rep.  1062;  Jencks  v.  Kenny,  28  Abb.  N.  C.  154;  19  N.  Y.  S.  Rep. 
248;  Cohen  r  Simmons,  C6  Hun,  634;  21  N.  Y.  S.  Rep.  385;  also  Comp. 
Laws,  S.  I).,  §2784;  Ulrick  r.  Dakota  Loan  and  Trust  Co.,  2  S.  D.; 
49  N.  \V.  Rep.  1054. 

J  tide  pendent  Contractor. —  When  the  right  to  the  support  of  the  soil 
with  the  structures  upon  it,  has  been  acquired,  the  defendant  cannot 
escape  liability  for  negligence  on  the  ground  that  he  has  placed  the  work 
in  the  hands  of  a  skillful  and  experienced  contractor. —  1  Thorap.  on  Neg. 
278;  Stevenson  v.  Wallace,  27  Gratt.  77;  Briggs  v.  Kloas,  5  Ind.  App. 
129;  81  N.  E.  Rep.  208.  Nor  where  a  duty  is  imposed  by  statute  upon 
the  person  making  the  excavation. —  Dorrity  t>.  Rapp,  72  N.  Y.  307.  To 
the  contrary  It  was  held  in  United  States  v.  Peachy  (36  Fed.  Rep. 
ICO),  that  the  employment  of  a  competent  architect  and  skillful  work- 
man negatives  the  charge  of  negligence.  See  Larson  v.  The  Metropol- 
lUn  Street  Ry.  Co.,  110  Mo.  234;  19  S.  W.  Rep.  416. 

/i'ctncdj/.— The  ailjolning  owner  may  bring  an  action  of  damages  for 
iojoriett  to  his  property,  or  may  enjoin  the  prosecution  of  the  work 


LATKKAL    AND    SLIUACKNT    KLl'I'UUT.  9 

tional  an«l  proximately  producing  injury  to  another  possess- 
ing e(jual  rights,"  —  we  will  proceed  to  describe  the  way  in 
which  duties  arise,  and  what  amount  of  care  is   required 


of  excavation.— Wier's  Appeal,  81  Pu.  Rt.  203;  Farrand  v.  Miirshall,  19 
Barb.  380;  l>1  Barb,  409;  Trowbruljju  v.  True,  u2  Conn.  I'JO;  20  Kcp.  426. 

JUunicipal  Corpuratiun. —  The  ri'^lit  to  tlio  luttral  support  of  the  soil  ol 
I  he  street  can  not  be  accjuired  by  the  abutting  owner  as  a^jainst  a  city. — 
'  Dillon  on  Mun.  Corp.,  3d  ed.,  §  '.I'JO,  citing  Quincy  r.  Jones,  76  111. 
31;  20  Am.  Kep.  243;  Transportation  Co.  v.  Chicago,  99  U.  S.  736; 
Mitchell  p.  Uoiue,  49  Ga.  19.  Nor  can  this  right  be  acquired  by  a  city 
:is  a;:aiust  an  abutting  owner. —  Stearns  v.  City  of  Richmond,  88  Va.  992; 
14  S.  K.  Uep.  847;  citing  Dyer  ».  St.  Paul,  27  Minn.  467;8N.  W.  Kep.  272. 

Subjacent  Support. —  The  owner  of  the  surface  is  entitled  to  the  ri^ht 
of  support  by  the  mine  owner  beneath. —  Wilms  v.  Je.ss,  94  111.  4(;4; 
lones  r.  Wagner,  GG  Pa.  St.  429;  Zinc  v.  Franklinite  Co.,  13  N.  J.  L. 
:  42;  Horner  v.  Watson,  79  Pa.  St.  242;  Livingstone  v.  Moingoua  Coal 
Co.,  49  la.  3G9;  Curlin  v.  Chappel,  101  Pa.  St.  348;  47  Am.  K.  722.  But 
not  to  the  support  of  the  buildings  upon  the  surface. —  Wilms  w.  Jess, 
'4  111.  4C4.  Yet  the  mere  presence  of  buildings  upon  the  surface  will  not 
prevent  a  recovery  unless  it  is  shown  that  the  subsidence  would  not  have 
occurred  if  they  had  not  been  placed  there. —  Wilms  v.  Jess,  94  111.  464. 
It  has  been  held  that  the  right  of  support  of  buildings  upon  the  surface 
may  be  ac<iuirc-d  l)y  pr<'!scri|>tion. —  Partridge  v.  Scott,  3  M.  &  W.  220; 
Kogers  V.  Taylor,  2  Hurst.  &.  N.  828.  The  rights  of  the  surface  and  mine 
owiH-r  may,  however,  be  regulated  by  the  terms  of  the  grant  under  which 
Ihoy  hold,  and  accordingly  the  surface  owner  may  or  may  not  be  entitled 
to  the  support  of  the  soil.  —  Scranton  t;.  Phillips,  94  Pa.  St.  15;  Kow- 
bolham  v.  Wilson,  8  H.  L.  348;  Smart  r.  Morton,  5  E.  &  B.  30;  Burgner 
t?.  Humphrey,  41  Ohio  St.  340. 

Suituu  of  Limitations.  —The  statute  of  limitations  begins  to  run  in 
actions  of  this  kind  from  the  time  damage  accrues. —  Backhouse  v. 
Bonoml,  9  II.  L.  Cas.  503.  For  removing  any  part  of  the  subjacent  sup- 
port, a  cause  of  action,  it  has  been  held,  ari.sts,  though  no  actual  damage 
is  done.  — Nicklin  w.  Williams,  10  Exch.  259.  But  see  Backhouse  v. 
Bonorai,  9  U.  L.  Cas.  503,  which  practically  overrules  it.  Where  a  sub- 
.sidence  of  land,  causing  damage  to  plaiLtiff's  cottages,  occurred  by  rea- 
son of  excavations  in  a  coal  mine,  and  some  lifteen  years  after  a  second 
subsidence  occurred  by  reason  of  the  previous  excavations,  the  work- 
ing of  the  mine  having  been  discontinued  from  the  time  of  the  first 
subsidence,  It  was  held  that  a  cause  of  action  arose  from  the  damage 
caused  by  the  second  subsidence,  and  that  it  was  not  l)arred  by  the  stat- 
ute of  limitations.— Mitchell  t).  Darh-y  Main  Colliery  Co.,  Eng.  Ct.  App., 
24  Am.  Law  Keg.;   14  Weekly  Law  Bull.  1(;4. 

Contributory  yegligetice. —  The  owner  of  property  who  has  been  notl- 


10  DEFINITION    AND    DIVISION   OF    SUBJECT. 

in  their  performance,  and  what  is  the  nature  of  a  breach 
of  duty  of  which  the  law  takes  cognizance,  viz.,  a  culp- 
able act  contrary  to  the  duty  and  proximately  producing 
injury. 

[9]  Duties  may  arise  out  of  express  contracts  between 
parties,  or  may  be  imposed  by  law. 

It  is  not  proposed  in  the  present  treatise  to  deal  with  the 
breaches  of  those  duties  which  are  expressly  or  impliedly 
provided  for  V)y  the  nature  or  terms  of  the  contract,  partly 
because  the  tield  so  opened  out  would  be  too  extensive,  and 
partly  because  the  term  "  negligence  "  is  not  strictly 
speaking  applicable  to  such  breaches  of  duty,  the  question 
in  such  cases  being,  not  whether  the  act  done  or  omitted  is 
negligent  or  not,  but  whether  the  act  done  or  omitted  is 
what  was  or  was  not  expressly  or  impliedly  agreed  to  be 
done  or  omitted.  It  will,  however,  be  found  that  cases  of 
breach  of  contract  are  frequently  referred  to  in  the  text. 
For  it  very  often  happens  that  the  contract  between  the 
parties  is  little  more  than  an  expression  in  words  of  what 


fled  by  the  adjacent  owner  intending  to  make  an  excavation  upon  his  own 
land,  to  protect  his  buildings,  is  guilty  of  contributory  negligence,  in 
failing  to  do  so.  —  Winn  v.  Abeles,  35  Kan.  85.  And  when  the  adjacent 
owner  uses  due  care  and  skill  in  conducting  his  excavations,  he  will  not 
be  responsible  if  the  building  of  his  neighbor  falls  because  of  the  insuf- 
ficiency of  its  foundation  walls.  —  Richart  v.  Scott,  7  Watts,  460.  The 
case  would  perhaps  be  different  if  the  owner  was  entitled  of  right  to  the 
support  of  uis  land  and  buildings.  The  fact  that  the  building  was  neg- 
ligently constructed  has  been  held  to  be  evidence  properly  submitted 
to  the  jury.  — Stevenson  B.  Wallace,  27  Gratt.  77.  The  subsidence  of 
land  caused  by  the  weight  of  a  building  erected  on  the  surface  after  the 
execution  ol  a  lease  to  the  defendant  authorizing  him  to  take  the  min- 
erals beneath  the  surface,  may  be  shown  in  defense  as  contributory  neg- 
ligence.—Wilms  c.  Jess,  04  111.  4C4. 

Damages.  —  The  measure  of  damages  is  the  diminution  in  the  value  of 
the  land.— Moellerlng  r.  Evans,  121  Ind.  198;  22  N.  E.  Rep.  989;  Schultz 
r.  Bower  (Minn.),  59  ^\  W.  Rep.  G31;  McGuire  v.  Grant,  25  N.  J.  L. 
35C,  and  many  of  the  cases  above  cited.  Provided  the  doctrine  of  pre- 
scription Is  sustained  it  is  reasonable  that  injury  to  ancient  houses 
should  be  considered  in  estimating  the  damages. 


I'KIVITY    OF    CONTKAIT.  11 

the  law  would  otliorwiso  impose,  iiml  the  (luestion  i:iise(i 
between  the  parties  is  the  siiine  as  if  there  had  been  a  breach 
of  duty  imposed  by  hiw.  Whore  persons  have  imposed  en- 
tirely new  duties  upon  themselves  by  agreement,  or  have 
limited  or  varied  by  airreemcnt  the  obligations  imposed 
upon  them  by  law,  this  treatise  will  not  deal  with  the  (jues- 
tion  of  their  liability. 

Sometimes,  however,  where  tiiero  has  l)een  a  breach  of 
contract  towards  the  contractinii  party  there  has  also  been 
I  breach  of  duty  towards  a  third  person  not  privy  to 
the  contract,  and  such  breach  of  duty  is  actionable. 
Thus,  where  a  man  sold  a  gun  which  he  knew  to  be  dan- 
gerous to  the  father  of  a  lad,  knowing  the  lad  would  use 
it  ( »» ),  and  where  a  man  sold  a  pernicious  hair  dye  to  another 
man,  knowing  his  wife  would  use  it,  the  defendants  in 
each  case  were  held  liable  for  the  injuries  done  to  such 
third  parties  on  the  ground  that  knowing  who  was  going  to 
use  the  articles  they  owed  to  such  third  parties  a  duty  to 
[10]  use  care  towards  them  (o).  But  where  a  man  neg- 
ligently built  a  coach  (p),  and  negligently  put  up  a  chan- 
delier (7),  it  was  held  that  ho  owed  no  duty  to  a  stranger 
and  w;is  not  liable  to  a  stranger  who  was  injured  in 
consequence  of  such  negligence.  In  an  American  case  (r), 
it  was  held  that  where  the  negligence  was  dangerous  to 
human  life,  as  in  the  case  of  poisonous  drugs,  the  negligent 
person  was  liable  to  any  one,  however  remote,  who  was 
injured.  The  true  question  always  is,  has  the  defendant 
committed  a  breach  of  duty  apart  from  contract?  If  he 
has  only  committed  a  breach  of  contract  ho  is  liable  to 
those    only  with  whom  he  has  contracted;   but  if  ho  has 

[n)  I  cvy  f.  I^njrrldKC.  4  M.  *.  W.  337.  ruled,  sec  infra.     (Sec  Elliott  r.  Uall.M 

This   case    tarnod   on    tho   quosUon  of  L.  J.  Kcp.  ij.  11.518.] 
fraud.  (7)  Collis  v.  Seldcn,  L.    II.  3   O.    P. 

(o)  Goortco    V.    SklvtnKton,    I..    U.    1  ^M  ;  37  L.  J.  C.  T. -23;  LoiiKmeld  f.  Ilol- 

Exch.  1.  llday.  6  Kxch.  767;  Gladwell  v.  Stoggall, 

Ip)  WIntcrbottora  r.  WrlRht,  10  M.  A  8  Scott,  G7  ;  !i  BIng.  N.  C.  733. 
W.  109;  Bconlso  Heaven   r.  Tender,  9Q.  (r)  Thomas  r.    WlnchcBter,  6  N.  Y. 

B.  D.  30-2;  which  case,  however,  Is  over  397;  and  see   Parry  r.  Smith,  48  L.  J.  <;. 

r.  731 ;  4  C.  r.  L).  3.'S. 


12  DEFINITION   AND   DIVISION   OF   SUBJECT. 

committed  a  breach  of  duty  he  is  not  protected  by  setting 
up  a  contract  in  respect  of  the  same  matter  with  another 
person  (s). 

Since  the  above  statement  of  what  appeared  to  me  to 
be  the  law,  the  case  of  Heaven  v.  Pender  (0  bas  been 
decided  in  the  Court  of  Appeal.     The  Court,  which  con- 

(«)  See  Anslin  v.  Gt.    Weetern   Ry.  it)  Heaven  v.  Pender,  11    Q.  B.    D. 

Co.,  ptr  Hlackbarn,  J.,  L.  U.  2  Q.  B.  442 ;       506. 
36  L.  J.  Q.  U.  2«I. 


Privity  of  Contract.  —  The  doctrine  of  the  text  is  sustained  in  a 
uumbtT  of  casis.  (Lawson  Cont,  §  241.)  It  was  announced  in  Necker 
V.  Harvey  (49  Mich.  517),  where  an  employe  of  the  vendee  was  injured 
by  the  defective  construction  of  an  elevator,  though  the  vendor  and 
manufacturer  was  held  liable  because  he  was  controlling  it  at  the  time 
of  the  injury. 

Where  A.  sold  a  defective  balance  wheel  to  B.,  which  burst  four  years 
after,  killing  C,  it  was  held  that  C.'s  personal  representative  could  not 
maintain  an  action  against  A.  — Loop  v.  Litchfield,  42  N.  Y.  351. 

And  in  Losee  v.  Clute,  51  N.  Y.  494,  a  manufacturer  and  vendor  of  a 
steam  boiler  which  exploded  because  of  its  defective  construction  was 
held  not  liable  for  injuries  caused  thereby  to  a  third  person,  a  case, 
the  soundness  of  which  has  been  questioned.  —  1  Thomp.  Neg.  233; 
Ileizer  v.  Kingsland,  19  S.  W.  Rep.  630.  The  extreme  case  in  the 
oilier  direction  is  that  of  Van  Winkle  v.  American  Steam  Boiler  Insur- 
ance Company  (52  N.  J.  L.  240;  19  Atl.  Rep.  472),  where  the  insurer  of 
a  steam  boiler,  who  co-operated  with  the  owner  in  the  management, 
was  held  liable  for  damage  to  the  adjacent  property  of  a  third  person, 
cau.sed  by  the  explosion  of  the  boiler  which  he  had  omitted  to  properly 
U-8t  and  Inspect.  —  Vide  Schubert  v.  Clark,  51  N.  W.  Rep.  1103. 

Upon  the  same  principle,  attorneys,  clerks  and  recorders  have  been 
held  not  liable  to  third  parties  for  losses  sustained  by  negligence  in  the 
examination  of  titles.  —  Houseman  v.  Girard,  M.  B.  &  L.  Ass.,  81  Pa.  St. 
250;  Savings  Bank  v.  Ward,  100  U.  S.  195;  Dundee,  etc.,  Co.  v.  Hughes; 
D.  S.  C.  C,  1).  Greg.,  18  C.  L.  J.  470;  24  Am.  Law  Reg.  197;  Common- 
wemlth  V.  Harmer,  G  Phiiu.  90;  McCaraher  v.  Commonwealth,  5  Watts  & 
8.  21;  Day  v.  Iteynolds,  23  Hun,  131;  Fish  v.  Kelly,  17  C.  B.  fx.  s.) 
194.     See  Kahl  v.  Love,  37  N.  J.  L.  6. 

So,  In  an  attachment  proceeding,  plaintiff's  attorney,  at  the  request  of 
the  oberlff  to  write  a  bond,  properly  wrote  a  replevy  bond.  Bondsmen 
signed  this  thinking  It  only  a  forthcoming  bond  and  this  the  attorney 
knew.  Subsequently  he  took  judgment  by  default,  without  giving  the 
bondHmen  notice,  and  upon  being  sued  by  them  he  was  held  not  liable. — 
Brand  v.  Craig,  84  Ga.  12;  10  S.  E.  Rep.  369.  See  Farmer  v.  Crosby,  43 
Minn.  4.7»;  45  N.  W.  Rep.  800. 


rUlVlTV    OF    CUMIIACT.  13 

[11]  sisted  of  Brett,  M.  R.,  and  Cotton  and  Bowcn,  J>.,J,J., 
jijxri'od  m  reversing  tlio  judgniont  of  the  court  below,  and 
held  the  defendant  to  be  liable  ;  but  they  differed  in  their 
reasons.  The  j)rinciplc  enunciated  hy  the  Master  of  the 
[  1 2]  Rolls  seems  to  be  that  if  a  reasonable  man  must  .see  that 
if  ho  did  not  use  care  in  the  circumstances  ho  might  cause 
injury  to  the  person  or  property  of  another  a  duty  arises 
to  use  such  care.     This  seems  to  be  (as  suggested  in  the 

It  was  applied  In  the  case  where  a  bridge  contractor  built  a  bridge 
under  a  contract  with  the  county  board  of  freeholders  and  a  third  person 
was  injured  by  its  fall. —  Marion  Safe  Co.  v.  Ward,  17  Vroora,  lU. 

Where  one  bought  grain  on  the  faith  of  the  certillcate  of  an  inspector 
with  whom  the  purchaser  did  not  contract, —  Gordon  v.  Livingston,  12 
Mo.  App.  207. 

Where  a  water  company  contracted  to  supply  a  city  with  water,  and 
in  conseiiueuce  of  a  breach  of  the  contract  the  city  was  unable  to  extin- 
guish a  Are,  the  company  was  hiUl  not  liable  to  a  citizen  who  sufifered 
damages  thereby. —  Nickerson  v.  Bridgeport  Hydraulic  Co.,  4G  Conn.  24; 
33  .\m.  Rep.  1 ;  Davis  v.  Clinton  Water  Works,  54  la.  59;  37  Am.  R.  185. 

But  sec  in  this  connection  the  case  of  Lampert  v.  Laclede  Gas-Light 
Co.,  14  Mo.  App.  37G,  where  It  was  maintained  that  a  recovery  could  be 
had  by  one  injured  by  the  "  negligent  non-performance  of  a  public  duty" 
against  a  gas  company  which  had  contracted  with  the  city  to  keep  Its 
lump  pust^  and  lani[)S  in  repair. 

Where  a  long  course  of  dealings  between  a  coal  merchant  and  a  cus- 
tomer establishes  an  implied  agreenu-nt  that  the  merchant  would  furnish 
tackle  for  use  in  unloading  coal  from  the  merchant's  barges,  the  latter 
is  liable  to  a  servant  of  the  former  for  personal  injuries  caused  by 
a  defect  In  the  tackle. —  Hayes  v.  Philadelphia  &  R.  C.  &  I.  Co.,  160 
Mass.  457 ;  23  N.  E.  Rep.  225.  See  Hulse  v.  New  York,  etc.,  R.  Co.,  71 
Ilun,  40;  24  N.  Y.  S.  Rep.  512. 

Liability  for  Selliner  Dangerous  Goods. —  But  where  the  vendor  has 
committed  a  breach  of  duly  his  liability  has  been  held  to  extend  to  third 
persons,  and  this  rule  has  been  applird  to  the  case  of  the  sale  of  danger- 
ous goods,  as  explosive  oils. —  Wellington  v.  Downer  Kerosene  Oil  Co., 
104  Mass.  C4;  Elkins  v.  McKean,  7'J  Pa.  St.  493;  Hourlgan  r.  Newell,  110 
Mass.  470. 

To  the  sale  of  poison  for  a  harmless  medicine. —  Thomas  v.  Wincbes- 
tor,  6  N.  Y.  397;  Norton  r.  Seweli,  lOC  Mass.  143. 

As  between  vendor  and  vendee,  the  vendor  has  been  held  not  liable  for 
an  omission  to  label  a  poisonous  drug  where  he  had  warned  the  vendee 
of  its  dangerous  character  and  given  accurate  instructions  as  to  its  use. — 
Wohlfahrt  v.  Beckert,  92  N.  Y.  490. 


14 


DKFIMTIO.N    AMJ    DIVISION    OF    SUBJECT. 


first  edition  of  this  work)  the  true  rule.  The  language 
of  the  Master  of  the  Rolls  is,  however,  so  clear  and 
emphatic,  and  his  comments  on  the  cases  so  instructive, 
that    his    judgment    is    given    in    full    in    Appendix    A.^ 


1  [The  case  is  given  in  full  in  the  notes.] 


Brett,  M.  R.  :  In  this  case  the  iWaintlff 
waaa  workman  in  the  employ  of  Gray,  a 
ehlp-paintcr.  Gray  entered  into  a  con- 
tract Willi  a  ship-owner,  whose  ship  was 
In  the  defundant's  dock,  to  paint  the 
ouiiilde  of  the  ship.  The  defendant,  the 
dock-owner,  supplied,  under  a  contract 
with  the  ship-owner,  an  ordinary  stage, 
to  be  slung  In  the  ordinary  way  outside 
the  8hip  for  the  purpose  of  painting  her. 
It  must  have  been  known  to  the  defend- 
ant's servants.  If  they  had  considered 
the  matter  atall,  that  the  stage  would  be 
put  to  Immediate  use,  that  It  would  not 
be  ni^ed  by  the  ship-owner,  but  it  would 
be  used  by  such  a  person  as  the  plaintiff, 
a  working  ehlp-palnter.  The  ropes  by 
which  the  stage  was  slung,  and  which 
were  supplied  as  part  of  the  instrument 
by  the  defendant,  had  been  scorched, 
and  were  unQt  for  use,  and  were  sup- 
plied without  a  reasonably  careful  atr- 
tcntlon  to  their  condition.  When  the 
plaintiff  began  to  use  the  stage  the  ropes 
broke,  the  stage  fell,  and  the  plaintiff  was 
injured.  The  Divisional  Court  held  that 
the  plaintiff  could  not  recover  against 
the  defendant.  The  plaintiff  appealed. 
The  action  Is  In  form  and  substance  an 
action  for  negligence.  That  the  stage 
was,  through  want  of  attention  of  the 
dcfcudant'H  servants,  supplied  In  a  state 
onsafo  for  use  Is  not  denied.  JSut  want 
of  attention,  amounting  to  a  want  of  or- 
dinary care,  la  not  a  good  cause  of  ac- 
tion, allhoiiifh  Injury  ensue  from  such 
want,  unless  the  person  charged  with 
nuch  want  of  ordinary  care  had  a  duty 
to  the  person  complaining  to  use  ordi- 
nary rare  In  respect  of  the  inalter  called 
in  <jut'btlon.  Actionable  negligence  con- 
■IhU  In  the  neglect  of  the  use  of  ordi- 
nary caro  or  skill  towards  a  person  to 
whom  the  defendant  owes  the  iuty  of 
obBcrvIng  ordinary  care  and  hklll,  by 
wbtch  neglect  the  plaintiff,  wilhoul  con- 
tributory nfgllgenccon  his  part,  has  suf- 
fered Injury  to  bin  person  or  property. 


The  question  In  this  case  Is  whether  the 
defendant  owed  snch  a  duty  to  the 
plaintiff. 

If  a  person  contracts  with  another  to 
use  ordinary  care  or  skill  towards  him 
or  his  property,  the  obligation  need  not 
be  considered  In  the  light  of  a  duty;  it 
Is  an  obligation  of  contract.  It  is  un- 
doubted, however,  that  there  may  be  the 
obligation  of  snch  a  duty  from  one  per- 
son to  another,  although  there  is  no  con- 
tract between  them  with  regard  to  such 
duty.  Two  drivers  meeting  have  no  con- 
tract with  each  other,  but  under  certain 
circumstances  they  have  a  reciprocal 
duty  towards  each  other.  So  two  ships 
navigating  the  sea.  So  a  railway  com- 
pany which  has  contracted  with  one  per- 
son to  carry  another  has  no  contract  with 
the  person  carried,  but  has  a]  duty  to- 
wards that  person. 

So  the  owner  or  occupier  of  a  house 
or  land  who  permits  a  person  or  persons 
to  come  to  his  house  or  land  has  no  con- 
tract with  snch  person  or  persons,  but 
has  a  duty  towards  him  or  them.  It 
should  be  observed  that  the  existence  of 
a  contract  between  two  persons  does  not 
prevent  the  existence  of  the  suggested 
duty  between  them  also  being  raised  by 
law, independently  of  the  contract,  by  the 
facts  with  regard  to  which  the  contract 
is  made,  and  to  which  it  applies  an  ex- 
actly similar  but  a  contract  duty.  We 
have  not  in  this  case  to  consider  the  cir- 
cumstances in  which  an  implied  contract 
may  arise  to  use  ordinary  care  and  skill 
to  avoid  danger  to  the  saftety  of  person 
or  property.  We  have  not  in  this  case 
to  consider  the  question  of  a  fraudulent 
misrepresentation,  express  or  Implied, 
which  is  a  well  recognized  head  of  law. 

The  questions  which  we  have  to  solve 
In  this  case  are,  what  is  the  proper  defi- 
nition of  the  relation  of  two  persons, 
other  than  the  relation  establwhed  by 
contract  or  fraud,  which  Imposes  on  the 
oao  of  them  a  duty  towards  the  other 


I'lUVITV    OF    CONTKAC'T. 


IT) 


[13]  Cotton,  L..I.,  road  a  written  jii(ii::tncnl  in  whiih  Bowcn, 
L.J.,  coiicuri'c'd;  but  it  would  have  been  interesting 
to  hjive  been  uble  to  read  the  reasoninor  of  tlie  latter 
[14]   learned  judge  in  his  own  words.  The  substance  of  their 


toobHcno,  Willi  rCKard  to  the  person  or 
property  of  such  oilier,  such  ordlniiry 
c«ro  or  skill  an  may  be  necessary  tojiro- 
vent  Injury  to  hU  person  orprojjcrty; 
and  whellier  the  present  case  falls  within 
such  Uellnillon.  When  two  drivers  or 
two  ships  are  appruachluK  each  other 
such  a  relation  arises  between  them, 
when  they  are  approaclilnR  each  other 
In  such  a  manner  lliat,  unle^is  they  use 
ordinary  care  and  xklll  to  avoid  It,  there 
will  be  danger  of  an  Injurious  collUlon 
between  them.  Tlila  relation  Is  cstub- 
liHhed  In  such  circumstances  between 
them,  not  only  If  It  be  proved  that  they 
actually  know  and  think  of  this  danger* 
but  whether  such  proof  be  made  or  not. 
It  Is  established,  it  seems  to  me,  because 
any  one  of  ordinary  sense  who  did  think 
Would  at  once  rccof^nlze  that  If  ho  did 
not  use  ordinary  care  and  MklU  under 
such  circumstances  there  woald  be  such 
danger. 

And  every  one  ought,  by  the  univers- 
ally recognized  rules  of  right  and  wrong. 
to  think  HO  much  with  regard  to  the 
safety  of  others  who  may  be  Jeopardized 
by  his  concluct;  and  if,  being  In  such 
Circumstances,  he  does  not  think,  and  in 
consequence  neglects,  or  if  ho  neglects 
to  use  ordinary  care  and  skill,  and  injury 
ensue,  the  law,  which  takes  cognizance 
of  and  enforces  the  rules  of  right  and 
wrong,  will  force  him  to  give  an  Indem- 
nity for  the  Injury.  In  the  case  of  a  rail- 
way company  carrying  a  passenger  with 
whom  It  has  not  entered  Into  the  con- 
tract of  carriage,  the  law  Implies  the 
duty,  becauHC  it  must  bo  obvious  that 
unless  ordinary  care  and  skill  be  used 
the  personal  safety  of  the  passenger 
must  bo  en<langered.  With  regard  to 
the  condition  in  which  the  owner  or  oc- 
cupier leaves  his  house  or  property 
other  jihrateology  has  been  used  which 
it  is  necessary  to  consider. 

If  a  man  opens  his  shop  or  warehouse 
to  customers  it  Is  said  that  ho  invites 
them  to  enter,  and  that  this  invitation 
raises  the  relation  between  them  which 


imposes  on  the  inviter  the  duty  of  using 
reasonable  care  so  tokeep  house  or  ware- 
house ^tliat  it  [does]  nut  endanger  the 
person  or  property  of  the  person  Invited. 
This  Is,  in  a  sense,  an  accurate  iihrnse, 
and,  as  applied  to  the  cIrcumstaiK-en,  a 
sulUciently  accurate  plira^c.  Yet  it  Is 
notaecuratelf  the  word  "invitation  "  be 
used  in  its  ordinary  sense.  IJy  openinij 
a  shop  you  do  not  really  invito  —  you  do 
not  ask  A.  B.  to  come  In  to  buy;  you  In- 
timate to  him  that  If  It  pleases  htm  to 
come  In  he  will  And  things  which  you 
arc  willing  to  sell.  So  in  the  case  of 
shop,  warehouse,  road,  or  premises,  the 
phrase  has  been  used  that  if  yuu  permit 
a  person  to  enter  tlicin  you  Impose  on 
yourself  a  duty  not  to  lay  a  trap  for  him . 
Tills,  again,  is,  in  a  sense,  a  true  state- 
ment of  the  duty  arising  from  the  rela 
tion  constituted  by  the  permission  to 
enter.  It  is  not  a  statement  of  what 
causes  the  relation  which  raises  the 
duty.  What  causes  the  relation  Is  the 
permission  to  enter  and  the  entry.  But 
It  is  not  a  strictly  accurate  statement  of 
the  duty.  To  lay  a  trap  means  In  lan- 
guage to  do  something  with  an  intention. 
Yet  it  is  clear  that  the  duty  extends  to  a 
danger  the  result  of  negligence  without 
intention.  And  with  regard  to  both 
these  phrases,  though  each  covers  the 
circumstances  to  which  it  is  particularly 
applied,  yet  It  docs  not  cover  the  other 
set  of  circumstances  from  which  an  ex- 
actly similar  legal  liability  is  Inferred.  It 
follows,  as  it  seems  to  me,  that  there 
must  bo  some  larger  proposition  which 
Involves  and  covers  both  sets  of  circum- 
stances. The  logic  of  inductive  rea- 
soning requires  that  where  two  major 
propositions  lead  to  exactly  similar 
minor  premisses  there  must  bo  a  more 
remote  and  larger  premiss  which  em- 
braces both  of  the  major  proposi- 
tions. That,  In  the  present  considera- 
tion Is,  as  It  seems  to  me,  the  samo 
proposition  which  will  cover  the  similar 
legal  liability  inferred  in  the  cases  of 
collision  and  carriage.    The  iiroposltiou 


IG 


DEFINITION    AND    DIVISION    OF    SUBJECT. 


judgment  was  to  the  effect  that  the  plaintiff  was  engaged  on 
work  at  the  invitation  of  the  defendant,  which  is  altogether 
[15]  another  question  to  that  which  we  are  now  consider- 
ing, and  is  treated  of  elsewhere.     But  they  took  occasion  to 


which  UicBC  recognized  cases  saggest, 
and  which  U,  therefore,  to  be  deduced 
from  them,  is  that  whenever  one  person 
Is  by  circamslances  placed  in  such  a 
position  with  regard  to  another  that 
every  one  of  ordinary  sense  who  did 
think  would  at  once  recognize  that,  if 
ho  did  not  use  ordinary  care  and  skill 
In  hU  own  conduct  with  regard  to  those 
circumstances,  he  would  cause  danger 
of  Injury  to  the  person  or  property  of 
the  other,  a  duty  arises  to  use  ordinary 
care  and  skill  to  avoid  such  danger. 

Wlthoutdlsplaclng  the  other  proposi- 
tions to  which  allusion  has  been  made, 
as  applicable  to  the  particular  circum- 
Btanccs  In  respect  of  which  they  have 
been  enunciated,  this  proposition  In- 
cludes, 1  think,  all  the  recognized  cases 
of  liability.  It  is  the  only  proposition 
which  covers  them  all.  It  may,  there- 
fore, safely  be  aOlrmed  to  be  a  true 
proposition,  unless  some  obvious  case 
can  be  stated  In  which  the  liability  must 
bo  admitted  to  exist,  and  which  yet  Is 
not  within  this  proposition.  There  is  no 
such  case.  Let  us  apply  this  proposi- 
tion to  the  case  of  one  person  supplying 
goods  or  machinery  or  Instruments  or 
utensils,  or  the  like,  for  the  purpose  of 
their  being  used  by  another  person,  but 
with  whom  there  Is  no  contract  to  sup- 
l>ly.  The  proposition  will  stand  thus: 
»vlionever  one  pcr.son  supplies  goods,  or 
inaclilnery,  or  the  like,  for  the  purpose 
of  their  being  used  by  another  person, 
under  such  circumstances  that  every 
one  of  ordinary  sense  would.  If  he 
thought,  recognize  at  once  that,  unless 
ho  used  ordinary  care  and  skill  with  re- 
gard to  the  condition  of  the  thing  sup- 
lilied  or  the  mode  of  supj. lying  it,  there 
will  be  dang.'r  of  Injury  to  the  person  or 
property  of  him  for  whoso  use  the  thing 
U  aupplled.  and  who  Is  to  use  It,  a  duty 
■rUca  to  use  ordinary  care  and  skill  as 
to  the  condition  or  manner  of  supplying 
■uch  thing.  And  for  a  neglect  of  such 
ordinary  care  or  skill  whereby  Injury 
bappeiui.  a  legal  llublllty  arises  to  bo 


enforced  by  an  action  for  negligence. 
This  includes  the  case  of  goods,  &c., 
supplied  to  be  used  immediately  by  a 
particular  person  or  persons,  or  one  of 
a  class  of  persons,  where  it  would  be 
obvious  to  the  person  supplying.  If  he 
thought,  that  the  goods  would  in  all 
probability  be  used  at  once  by  such  per- 
sons before  a  reasonable  opportunity 
for  discovering  any  defect  which  might 
exist,  and  where  the  things  supplied 
would  be  of  such  a  nature  that  a  neglect 
of  ordinary  care  or  skill  as  to  its  condi- 
tion of  the  manner  of  supplying  It  would 
probably  cause  danger  to  the  person  or 
property  of  the  person  for  whose  use  it 
was  supplied,  and  who  was  about  to  use 
It.  It  would  exclude  a  case  in  which 
the  goods  are  supplied  under  circum- 
stances In  which  it  would  be  a  chance 
by  whom  they  would  be  used,  or  whether 
they  would  be  used  or  not,  or  whether 
they  would  be  used  before  there  would 
probably  be  means  of  observing  any  de- 
fect, or  where  the  goods  would  be  of 
such  a  nature  that  a  want  of  care  or 
skill  as  to  their  condition  or  the  manner 
of  supplying  them  would  not  probably 
produce  danger  of  injury  to  person  or 
property.  The  cases  of  vendor  and  pur- 
chaser and  lender  and  hirer  under  con- 
tract need  not  be  considered,  as  the  lia- 
bility arises  under  the  contract,  and  not 
merely  as  duty  Imposed  by  law,  though 
it  may  not  be  useless  to  observe  that  it 
seems  difficult  to  import  the  implied  ob- 
ligation into  the  contract,  except  in 
cases  in  which,  if  there  were  no  contract 
between  the  parties  the  law  would,  ac- 
cording to  the  rule  above  stated,  imply 
the  duty. 

Examining  the  rule  which  has  been 
above  enunciated  with  the  cases  which 
have  been  decided  with  regard  to  goods 
supplied  for  the  purpose  of  being  used 
by  persons  with  whom  there  is  no  con- 
tract, the  first  case  to  be  considered  Is 
Inevitably  Langridge  v.  Levy  (2  M.  &  W 
519;  4  M.  &  W.  337).  It  is  not  an  easy 
case  to  act  upon.    It  is  not  —  it  cannot 


PRIVITY    OF    CONTRACT. 


17 


say  that  they  did  not  concur  with  the  Master  of  the  Rolls, 
[Ifi]  and  cited  tho  usmd  authorities.  They,  however,  said 
that  they  did  not  doul)t  that  any  man  who  leaves  or  supjjlies 
a  dangerous  instrument  or  thing,  which  to  his  knowledge  is 


bo  —  nccnratoly  reported;  tho  declara- 
tion Is  act  out;  tho  evidence  le  nBsuincd 
to  bo  reported;  tho  (luostlons  left  to  tho 
jury  are  stated.  And  then  it  is  salfl  that 
a  motion  was  ma<le  to  enter  a  nonsuit  in 
pnrsuancoof  leave  reserved  on  particu- 
lar grounds.  Those  Rrounds  do  not  raise 
tho  question  of  fraud  at  all,  but  only  tho 
rcmolcnoBS.  And  although  the  question 
of  fraud  seems  In  a  Boneo  to  have  been 
left  to  the  Jury,  yet  no  question  was,  ac- 
cording to  the  report,  left  to  them,  as  to 
whether  tho  plaintiff  acted  on  the  faith 
of  the  fraudulent  misrepresentation 
which  is,  nevertheless,  a  necesBary 
question  in  a  case  of  fraudulent  misrep- 
resentation. The  report  of  tho  argu- 
ment makes  tho  object  of  the  argument 
depend  entirely  upon  an  assumed  motion 
to  arrest  tho  judgment,  which  raises  al- 
ways a  discussion  depending  entirely  on 
tho  form  of  the  declaration,  and  the  ef- 
fect on  It  of  a  verdict.  In  respect  of  which 
It  is  assumed  that  all  questions  were 
left  to  tho  jury.  If  this  was  tho  point 
taken,  the  report  of  the  evidence  and  of 
tho  questions  left  to  the  jury  Is  idle. 
Tho  case  was  decided  on  tho  ground  of 
a  fraudulent  misrepresentation  as  stated 
in  the  declaration.  It  is  Inferred  that 
the  defendant  Intended  the  representa- 
tion to  be  cominunicated  to  his  son. 
Why  ho  should  have  such  an  Intention, 
In  fact,  seems  dllUcult  to  understand. 
His  Immediate  object  mast  have  been  to 
induce  the  father  to  buy  and  pay  for  tho 
gun.  It  must  have  been  wholly  Indiffer- 
ent to  him  whether,  after  the  sale  and 
payment,  the  gun  would  bo  used  or  not 
by  the  son.  I  cannot  hesitate  to  say 
that.  In  my  opinion,  tho  case  is  a  wholly 
unsatisfactory  case  to  act  on  as  an  au- 
thority. Itut  taking  the  caso  to  bo  de- 
cided on  the  ground  of  a  fraudulent 
misrepresentation  made  hypothellcally 
to  tho  son,  and  acted  upon  by  him,  such 
a  decision  upon  such  a  ground  In  no  way 
negatives  the  proposition  that  the  action 
might  have  been  sui>ported  on  tho 
ground  of  negligence  without  fraud.    It 


seems  to  be  a  caso  which  Is  within  tho 
proposition  enunciated  In  thlsjudginent, 
and  in  which  tho  action  might  have 
been  supported  without  proof  of  actual 
fraud. 

And  this  seems  to  be  the  meaning  of 
Cleasby,  B.,  In  tho  observation  ho  made 
on  I.angrldgc  v.  Levy  (1  M.  &  W.  619,  4 
M.  &  W.  337)  In  tho  case  of  George  v. 
Skivington  (Law  Uep.5  Kx.  1,5).  In  that 
caso  tho  proposition  laid  down  In  this 
Judgment  Is  clearly  adopted.  The 
ground  of  the  decision  Is  that  the  article 
was,  to  tho  knowledge  of  the  defendant, 
supplied  for  the  use  of  tho  wife,  and  for 
her  Immediate  use.  And  certainly,  If 
he,  or  any  one  In  his  position,  had 
thought  at  all,  It  must  have  been  obvious 
that  a  want  of  ordinary  care  or  skill  In 
preparing  tho  preBcrli)tlon  sold  would 
endanger  the  personal  safety  of  his  wife. 

In  Corby  v.  IIlll  (4  0.  IJ.  (N.  S.)  556; 
27  L.  J.  C.  P.  (N.  S.)  318)  It  is  stated  by 
tho  Lord  Chief  Justice  that  an  allure- 
ment was  held  out  to  the  plaintiff.  And 
Wllles,  J.,  stated  that  the  defendant  had 
no  right  to  set  a  trap  for  tho  plaintiff. 
But  in  the  form  of  declaration  suggested 
by  Wllles,  J.,  on  p.  567,  there  Is  no  men- 
tion of  allurement,  or  invitation,  or  trap. 
Tho  facta  suggested  in  that  form  are 
"  that  the  plaintiff  had  license  on  the 
roa<l ;  that  he  was  in  consequence  accus- 
tomed and  likely  to  pass  along  it;  that 
the  defendant  knew  of  that  custom  and 
probability;  that  the  defendant  negli- 
gently placed  slates  in  such  a  manner  as 
to  be  likely  to  prove  dangerous  to  per 
sons  driving  along  tho  road;  that  the 
plaintiff  drove  along  the  road,  being,  by 
reason  of  the  license,  lawfully  on  tho 
road;  and  that  he  was  injured  by  the 
obstruction.  It  Is  Imposslblu  to  state  a 
case  more  exactly  within  the  proposition 
laid  down  In  this  Judgment.  In  Smith 
V.  London  and  St.  Kathorlno  Docks  Co. 
(Law  Rep.  3  C.  P.  326)  the  phrase  Is  again 
used  of  invitation  to  tho  plaintiff  by  tho 
defendants.  Again,  let  it  be  observed 
that  there  Is  no  objection  to  the  phrase 


18 


DEFINITION    AND    DIVISION    OF   SUBJECT. 


[17]  such  as  to  cause  danger  not  necessarily  incident  to  its 
use,  is  liable.  This,  however,  is  the  principle  of  Tarry  v. 
Ashton  and  other  cases,  and  is  not  disputed. 

The   present   treatise,    therefore,    is   limited    as    far  as 
possible  to  the  breach  of  duties  imposed  by  law.     These 


as  applied  to  the  case.  But  tbe  realvalne 
of  the  phrase  may  not  Improperly  be 
eald  to  be,  that  Invitation  Imports  knowl- 
edge by  the  defendant  of  the  probable 
use  by  the  plaintiff  of  the  article  sup- 
plied, and  therefore  carries  with  it  the 
relation  between  the  parties  which  es- 
tablishes the  duty.  In  Indermaur  v. 
Dames  (Law  Rep.  1  C.  P.  274 ;  Law  Kep. 
•i  C.  P.  311)  reliance  is  again  placed  upon 
a  supposedlnvltation  of  the  plaintiff  by 
the  defendant.  But,  again,  it  is  hardly 
possible  to  state  facts  which  bring  a  case 
more  completely  witiiin  the  definition  of 
the  present  judgment.  In  Winterbottom 
r.  Wright  (10  M.  &  W.  109)  it  was  held  that 
there  was  no  duty  cast  upon  the  defend- 
ant with  regard  to  the  plaintiff.  The 
case  was  decided  on  what  was  equiva- 
lent to  a  general  demurrer  to  the  declar- 
ation. And  the  declaration  does  not 
seem  to  show  that  the  defendant,  if  he 
had  thought  about  it,  must  have  known, 
or  ought  to  have  known,  that  the  coach 
would  be  necessarily  or  probably  driven 
by  the  plaintiff,  or  by  any  class  of  which 
be  could  be  said  to  be  one,  or  that  it 
would  bo  80  driven  within  any  time 
which  would  make  it  probable  that  the 
defect  would  not  be  observed.  The 
declaration  relied  too  much  on  con- 
tracts entered  into  with  other  persons 
than  the  plclr.tlff.  The  facts  alleged  did 
not  bring  tlic  case  within  the  proposition 
herein  enunciated.  It  was  an  attempt  to 
oBlablisb  a  duty  towards  all  the  world. 
The  case  was  decided  on  the  ground  of 
rcmot4.'nc-8s.  And  It  Is  to  too  great  a 
remotencBB  that  the  observation  of  I^rd 
Abinger  Is  pointed  when  lie  says  tliat  the 
doctrine  of  I..angrldge  r.  Levy  (2  M.  &  W. 
ftl9;«  M.&  W.  ;J37)  is  not  to  be  extended" 
In  Francis  r.  Cockrell  (T.jiw  Kcp.  5  Q. 
It.  IM,  and  p.  Ml)  the  decision  is  put  by 
•omc  of  the  judges  on  an  Implied  con- 
tract between  the  plaintiff  and  the  de- 
femlitit.  But  Cleanby,  B.  (p.  GI.5),  puts 
It  upon  the  duty  raised  by  the  knowledge 


of  the  defendant  that  the  stand  was  to 
be  used  immediately  by  persons  of  whom 
the  plaintiff  was  one.  In  other  words, 
he  acts  upon  the  rule  above  laid  down. 

In  Collis  V.  Seldon  (Law  Rep.  5  C.  P. 
495)  it  was  held  that  the  declaration  dis- 
closed no  duty.  And  obviously,  the  de- 
claration was  too  uncertain.  There  Is 
nothing  to  show  that  the  defendant 
knew  more  of  the  probability  of  the 
plaintiff  rather  than  any  other  of  the 
public  being  near  the  chandelier.  There 
was  nothing  to  show  that  the  plaintiff 
was  more  likely  to  be  in  the  public  house 
than  any  other  member  of  the  public- 
There  was  nothing  to  show  how  soon 
after  the  hanging  of  the  chandelier  any 
one  might  be  expected  or  permitted  to 
enter  the  room  in  which  it  was.  The 
facts  stated  do  not  bring  it  within  the 
role. 

There  Is  an  American  case  —  Thomas 
and  Wife  (6  N.  Y.  397)  —  cited  in  Mr. 
Horace  Smith's  Treatise  on  the  Law  of 
Negligence  (p.  88,  n.  (6),  which  goes  a 
very  long  way.  I  doubt  whetherit  does 
not  go  too  far. 

In  Longmeid  v.  HoUlday  (6  Ex.  761 ;  20 
Law  J.  (Ex.)  430)  a  lamp  was  sold  to  the 
plaintiff  to  be  used  by  the  wife.  The 
jury  were  not  satisfied  that  the  defend- 
ant knew  of  the  defect  In  the  lamp.  If 
he  did,  there  was  fraud;  If  he  did  not, 
there  seems  to  have  been  no  evidence  of 
negligence.  If  there  was  fraud,  the  case 
was  more  than  within  the  rule;  If  there 
was  no  fraud,  the  case  was  not  brought 
by  other  circumstances  within  the  rule_ 
In  Gautret  v.  Egerton  (Law  Rep.  2  C. 
P.  371,  at  p.  374),  the  declaration  was 
held  by  Wllles,  J.,  to  be  bad  on  demurrer, 
because  in  did  not  show  that  the  defend- 
ant had  any  reason  to  suppose  that  per- 
sons going  to  the  blocks  would  not  have 
ample  means  of  seeing  the  holes  and 
cuttings  relied  on.  Ue  does  not  say  that 
there  must  be  fraud  in  order  to  support 
the  action.    He  says  there  must  be  some- 


CLASSES    OF    DUTIES.  TJ 

duties  may  bo  such  as  the  law  imposes  or  infers  from  the 
possession  of  ri«i;hts  or  from  the  relations  of  life,  such  as 
**  employer  and  employed,"  or  such  us  the  law  .specilically 
imposes  by  statute.  They  divide  themselves,  therefore, 
into  three  heads,  (1)  duties  which  arise  out  of  rif,dits, 
(2)  duties  which  arise  out  of  employment,  (3)  duties 
imposed  by  statutes. 

(1)  Men  are  put  by  the  law  in  possession  of  rights,  and 
the  law  imposes  upon  all  men  in  the  exercise  of  any  right 
a  duty  not  to  interfere  with  the  equal  rights  of  another 
apart  from  any  agreements  which  they  may  have  made 
between  themselves. 

If  in  the  exercise  of  a  right  which  a  man  has  by  law,  he 
unintentionally  breaks  or  omits  the  duty  of  not  interfering 
with  the  equal  rights  of  another  which  is  imposed  by  law 
and  thereby  injures  another,  he  is  guilty  of  a  tort  called 
nejirlisence. 

(2)  So,  also,  where  two  persons  assume  relations  to- 
wards each  other  of  employer  and  em[>loyed  involving  the 
performance  of  services,  there  the  law  implies  or  imposes 
the  conditions  that  the  performance  must  be  carefully 
[18]  carried  out.  These  are,  strictly  speaking,  contracts, 
and  the  law  implies  certain  terms  as  appertaining  to  these 
contracts. 

(3)  And  lastly,  whore  a  statute  directs  a  person  to  per- 
form a  duty  and  he  omits  to  perform  that  duty  with  care, 
ho  is  guilty  of  negligence. 

thing  like   fraud.    Mo    Bays :—"  Every  Unloflx  that  he  traetho proposition  mast 

iiian  |8  boand  not  willfully  to  deceive  be  true.    If  it  be  the  rule  the  present 

others."    And  then.  In  the  alternative,  case  is  clearly  within  It.    This  case  Is 

ho  says:—"  Or  todoaivj  art  ichich  mat/  also,  I  agree,  within  that  which   seems 

pUue  them  in  dangtr."    TIrto  seems  to  to    me   to    bo    a    minor    propoBition  — 

be  no  ca«e  tnconlllctwith  the  rule  above  namely,  the  propoHmon  which  has  been 

deduced  from    well  admitted  cases.    I  often  acted  upon  —  tliat  tlicre  was  In  a 

am,  therefore,  of  opinion   that  It  Is  a  sense,  an  Invitation  of  the  plaintiff  by 

good,  «afe  and  just  rule.  the  defendant  to  use  the   stage.    This 

I  cannot  conceive  that  If   the  facts  appeal  must,  in  my  opinion,  be  allowed, 

were  proved  which  would  make  oat  the  and  Judgment  must  bo  entered  for  tho 

proposition  I  have  enunciated,  the  law  i>)alnlllf. 
can  bo  that  there  would  be  no  liability. 


20  DEFINITION   AND   DIVISION   OF   SUBJECT. 

But  althouorh  duties  may  be  said  to  arise  in  these  three 
separate  ways,  yet  it  will  be  found  that  the  origin  of  the 
duty  does  not  materially  aflect  the  question  of  liability  for 
the  breach  of  the  duty.  It  may  be  remarked  that  in 
general  duties  imposed  by  statute  are  to  be  more  strictly 
obj^erved  than  those  which  are  not  so  imposed  (w);  but  I 
think  that  in  most  of  the  cases  it  will  be  found  that  the 
statutory  duty  is  imposed  when  a  benefit  is  also  bestowed, 
and  it  is  in  consideration  of  the  benefit  so  bestowed  that 
something  more  than  ordinary  care  is  expected  in  the  exe- 
cution of  the  duty  (x). 

But  the  law  draws  a  very  important  and  practical  dis- 
tinction between  ordinary  negligence  and  negligence  where 
the  law  demands  greater  or  less  care.  The  law  demands 
greater  care  where  a  person  has  or  professes  to  have  greater 
skill,  or  where  an  extra  amount  of  care  has  been  under- 
taken, or  advantage  obtained,  or  where  the  law  deems  it 
for  the  public  good  to  require  a  greater  amount  of  care; 
and  the  law  demands  a  less  amount  of  care  where  a  less 
amount  has  been  undertaken,  or  where  no  advantage  has 
been  obtained,  or  where  the  public  good  is  not  materially 
at  stake. 

There  is  in  law  a  well-known  relationship,  viz.,  that  of 
insurer  and  assured,  by  which  one  person  engages  to  in- 
demnify or  to  assure  another  against  loss.  This  is  usually 
effected  by  express  contract,  but  is  sometimes  implied  by 
the  law,  as,  for  instance,  in  the  case  of  common  carriers, 
who  become  a  sort  of  insurers  of  goods  entrusted  to  them 
[19]  for  carriage,  and  are  bound  to  carry  safely,  and  are  an- 
swerable for  loss  without  any  proof  of  negligence.  With 
regard  to  .such  contracts,  express  or  implied,  no  question  of 
negligence  arises ;  and  the  same  holds  with  respect  to 
cases  which  may  be  said  to  be  in  the  nature  of  assurance, 
viz.,  where  a  person  brings  upon  his  land  some  dangerous 

On  «.•<•  Campbell,  ]>.  3S,  ind  ed.  (x)  See  post,  Ch.  III.,  8.  6,  Corpora- 

llous  performing  Statutory  Duties. 


DEGREES    or    NEOLIOENCE.  21 

thing,  such  as  firo  or  water,  or  a  dangerous  animal,  for  ho 
is  bouDc],  as  we  shall  see,  to  keep  it  at  home  at  his  peril. 
In  all  these  classes  of  cases  something  more  than  *'  care," 
however  diligent,  is  demanded,  viz.,  absolute  indemnity. 

But  between  those  classes  and  those  duties  which  require 
the  exercise  of  ordinary  care  there  appears  to  he  a  groat 
number  of  cases  in  which  the  law  requires  something  more 
than  ordinary  care  and  something  less  than  insurance. 

There  is  also  a  further  class,  where  less  than  ordinary 
care  is  required,  and  yet  the  law  will  see  that  a  man  is  not 
absolutely  careless  of  the  rights  of  another.  This  mode  of 
dividing  the  duties  regarded  by  law  as  obligatory,  and 
which  is  adopted  more  or  less  distinctly  in  the  language  of 
English  judges,  is  derived  from  the  Roman  law. 

The  Romans  divided  duties  into  three  classes,  (1)  for  the 
benefit  of  the  i)crformer,  (2)  for  the  benefit  of  both  par- 
ties, (3)  for  the  benefit  of  the  performee.  Thus,  (1) 
Where  the  transaction  in  respect  of  which  the  duty  arose  was 
for  the  benefit  of  the  person  performing  it,  it  was  consid- 
ered that,  as  it  was  to  bo  done  for  his  advantage  alone,  and 
ho  was  to  derive  benefit  from  another,  he  ought  to  take  the 
greatest  care  not  to  injure  that  other;  and  he  was  therefore 
held  liable  for  culpa  A  r?.s,  or  slight  neglect.  (2)  Where 
the  transaction  out  of  which  the  duty  arose  was  for  the 
benefit  of  both  parties,  it  was  considered  that  the  person 
performing  the  duty  should  take  ordinary  and  reasonable 
care;  and  ho  was  therefore  held  liable  for  cnl])a.  (3) 
Lastly,  where  the  transaction  out  of  which  the  duty  arose 
was  for  the  sole  benefit  of  another,  and  the  person  per- 
forming it  would  derive  no  benefit  from  it,  it  was  considered 
[20]  that  the  person  performing  it  was  not  bound  to  exer- 
cise much  care  ;  and  he  was  therefore  held  not  liable,  except 
tor  culpa  lata  (y). 

(!/)    But   In   cju»c   of  rtiandate,   ovon  the  Uoman  law,  ho  has  nndcrtakcn  a 

where  for   the    boncllt  of  another,    he  gratultoas  service  and  maHl  perform  It. 

■was  by  the  Uotnan  lawllalilc  fo^<^W/)nor  Caini.lnU,  8.  11 ;  Wharton,  8.  •t'.iS,  and,  as 

<jven,  perbapa,  for  cvipa  levit;  for,  said  pointed  out  by  Mr.  Wharton,  8.  600,  the 


22  DEFINITION    AM)    DIVISION    OF   SUBJECT. 

Different  writers  have  divided  these  sorts  of  negligence 
in  different  manners,  some  insisting  that  there  are  only  two 
sorts  of  negligence  —  ^'culpa  levis''  and  ^' culpa  lata;  " 
others  dividing  the  subject  into  three  sorts  —  "  culpa  lata,^' 
culpa  (including  culpa  levis),  and  culpa  levissima  {z);  but 
it  seems  upon  the  whole  to  be  held  in  the  English  Court  (a) 
and  in  the  American  Courts  (6)  that  there  are  three  sorts 
of  negligence,  and  it  has  been  held  that  sometimes  per- 
sons are  liable  for  slight  negligence,  sometimes  for  ordi- 
nainj  negligence,  and  sometimes  for  gross  negligence  ;  and 
it  will  be  found  impossible  not  to  advert  to  these  terms, 
which  were  in  the  Roman  law  really  co-ordinate  to  the  dis- 
tinctly different  kind  of  duty  which  was  to  be  performed, 
and  which  will  be  found  constantly  used  in  the  English 
cases. 

The  truth  is  that  the  words  "  gross,"  "  ordinary,"  and 
"slight  "  (c),  however  useful  in  the  simpler  classification 
of  the  Eoman  law,  and  used  with  the  more  exact  precision 
of  the  Latin  language,  have  become  vague  and  misleading 
in  the  English  cases  and  text-books,  and,  indeed,  are  some- 
times used  merely  to  express  strong  feeling  with  respect 
[21]  to  the  particular  action  being  tried.  It  is  submitted 
that  the  best  test  of  whether  an  act  is  culpably  negligent  in 
the  particular  case  is  to  inquire  whether  there  was  a  duty 
to  exercise  ordinary  care,  or  something  more  or  less  than 
ordinary  care,  incumbent  upon  the  party,  and  whether  he 
had  reasonably    fulfilled  that   duty;   if  he  has,  he  is  not 

Kralaltous  mandatory  must  according  to  "  slight "  is  not  exactly  "  levis,"  whleh  is 

our  law,  bring  that  amount  of  skill  to  "light,"  and  that  the  word  "gross  "is 

tho  L'xecullon  of  his  services  which  he  not  exactly  "  lata,"   and   that  in  each 

haa  Ukcn  to  show.  And  see  post,  Ch.  HI,  Instance  the  English  word  is  too  strong, 

(s)  Bco  Campbell,  p.  4.  and,  In  fact,  as  is  usual  in  English, more 

(a)  8co  Campbell,  b.  14.     (He  divides  vigorous  and  picturesque  than  accnrate. 

obliifBllonH  Into  four  claBHCH,  but  one  of  The   word  "  gross"  seems  to  approach 

them  Is  "absolute  aHMirnncc,"   which  the  Latin  "dolus,"  which  denotes  the 

1*  riolly  ouuidc  of  the  subject.)    Shear-  Intentional  wrong,  and  is  outside  of  our 

man.Ch.  II.,  B.  16.  subject;  and    the   word   "slight"   ap- 

(t)  See  Ibis  view  diBcasBcd  by  Whar-  preaches  to  that  ''culpalevissima"  whicli 

ton,  a.  57.  JB  sometimes  spoken  of  as  negligence, 

(c)  ll  may  be  noticed  that  the  word  but  amounts  to  "  casus,"  or  accident. 


DEOKEE8   OF   NEGLIGENCE.  I'o 

negligent ;  if  ho  has  not,  ho  is  negligent.  The  words 
*'  ordinary  "  and  "  reasonably  "  are  no  doubt  vnguo,  but 
the  subject  is  only  further  obscured  by  the  introduction  of 
the  words  "grosrs"  and  "slight,"  because  nobody  can 
really  say  what  they  mean,  thouirh  aiiyi)ody  may  easily 
give  to  them  some  peculiar  or  exaggerated  meaning  (d). 

The  question  to  be  considered,  therefore,  is,  when  an 
injurious  act  has  been  done,  which  of  the  three  sorts  of 
duty  had  the  man  to  perform,  viz.,  more  than  ordinary 
care,  ordinary  care,  or  less  than  ordinary  care,  and  accord- 
ing as  it  is  found  to  be  of  the  first,  second,  or  third  class, 
so  is  he  liable  for  slight,  ordinary,  or  gross  negligence;  and 
the  sort  of  duty  demanded  of  him  depends  very  much,  but 
not  entirely,  upon  the  question  for  whose  benefit  was  he 
doing  the  duty.  As  an  illustration,  take  the  following 
case :  —  My  goods  are  lost.  The  person  who  lost  them 
was  (1)  dealing  with  them  for  his  own  advantage  alone, 
(2)  for  our  mutual  advantage,  (3)  formy  advantage  alone. 
His  duty  is  ( 1)  to  take  more  than  ordinary  care,  (2)  to 
take  ordinary  care,  (3)  to  take  less  than  ordinary  care. 
He  is  liable  (1)  for  slight,  (2)  for  ordinary,  (3)  for  gross 
negligence.  The  jury  having  found  as  a  fact  that  the 
defendant  was  dealing  with  the  goods  for  his  own  advan- 
tage, or  for  the  mutual  advantage  of  both  parties,  or  for 
my  advantage  alone,  the  law  says  for  what  sort  of  negli- 
gence ho  is  liable.  The  next  question  is  a  matter  of  fact 
for  the  jury.  As  a  matter  of  fact,  he  left  them  for  two 
minutes  outside  an  inn  on  the  road.  Now  comes  the  ques- 
[22]  tion,  is  that  an  act  of  slight,  ordinary,  or  gross  negli- 
gence? The  jury  would  then  have  to  consider  the  questions 
of  fact  apart  from  the  persons  ;  as,  for  instance,  were  the 
goods  of  a  class  likely  to  bo  lost  or  stolen  ?  was  the  cart 
prnperlycovered?wasthe  inn  in  a  populous  j)la('c?  and  so  on. 

The  sorf  of  care  to  be  taken  dcpiiiids  upon  the  duty  or  posi- 

(d)  SCO  judgment  of  Lord  Uhehnsford  in  i^lblln  f.  McMulh  n,  L.  IC.  J  F*. 
C.  317. 


24  DEFINITION   AND    DIVISION    OF   SUBJECT. 

tion  of  the  party,  and  is  a  question  of  law ;  the  amount  of  care 
to  be  taken  depends  upon  circumstances,  and  is  a  question 
of  fact.  If  a  person  gives  me  a  glass  jug  and  a  deal  box  to 
carry,  the  sort  of  care  which  I  have  to  exercise  depends 
upon  my  position  with  respect  to  that  person,  e.g.,  am  I 
paid  by  him  or  not;  but  the  amount  of  care  (whatever  the 
sort  of  care  may  be)  will  differ,  and  be  probably  greater  in 
respect  of  the  glass  jug  than  of  the  deal  box  (e). 

{«)  See  Philadelphia  ny.  Co.  i-.Boyer,  Ry.Co.,  on^e.p.  2;andit  is  now  well  set- 

97  Pa.  St.  101.  In  an  action  of  negligence,  tied  in  England  that  a  mere  scintilla  of 

as  in  other  actions,  It  la  for  the  judge  to  evidence    is  not  sufficient  to  go  to  the 

bay   whether  there  is  any  evidence  of  jury.  Gee  v.  Met.  Ry.  Co.,  L.  R.  8  Q.  B. 

negligence  atall  to  go  to  the  jury,  and  if  161;  42  L.  J.  Q.   B.  105;  Met.  Ry.  Co.  v. 

not,  to  direct  a  nonsuit,  Daniel  v.  Met.  Jackson,  47  L.J.  H.  L.  303;  L.  R.  3  App. 

(d)  The  tendency  of  the  American  courts  has  been  toward  rejecting  the 
distinction  formerly  recognized  as  to  degrees  of  negligence. —  Steamboat 
New  World  v.  King,  16  How.  474;  R.  R.  Co.  v.  Lockwood,  17  Wall.  357; 
Gill  V.  Middleton,  105  Mass.  479;  Milwaukee,  etc.,  R.  Co.  v.  Arms,  91 
U.  S,  494;  Briggs  v.  Taylor,  28  Vt.  185;  Cass  v.  Boston  R.  Co.,  14 
Allen,  448;  Perkins  v.  N.  Y.  Cent.  R.  Co.,  24  N.  Y.  206;  Whart.  on 
Neg.  (2d  ed.),  §  64;  Wells  v.  N.  Y.  Cent.  R.  Co.,  24  N.  Y.  181 ;  Smith  v. 
N.  Y.  Cent.  R.  Co.,  24  N.  Y.  241;  City  of  Lincoln  v.  Smith,  28  Neb.  762; 
45  N.  W.  Rep.  41 ;  McAdoo  v.  Richmond  &  D.  R.  Co.,  105  N.  Y.  140;  II  S. 
E.  Rep.  31G;  Brooks  w,  Hannibal  &  St.  J.  R.  Co.,  35  Mo.  App.  571 ;  City  of 
Vandalla  v.  Ropp,  39  HI.  App.  344;  McGrath  v.  Village  of  Bloomer,  73 
Wis.  29;  40  N.  W.  Rep.  585. 

The  distinction  is  approved  in  Shearman  &  Redfleld  on  Neg.,  2d  ed., 
§§  16  and  17  and  notes,  citing  many  cases.  See  an  article  on  this  subject, 
17  Cent.  Law  Jl.  261. 

It  is  declared  in  New  Hampshire  by  statute. —  N.  H,  Gen.  St.  1878, 
chap.  264,  §  14;  State  v.  Boston  and  Maine  R.  Co.,  58  N.  H.  408. 

Characterized  as  impracticable  in  Ohio.— Western  Union  Tel.  Co.  w. 
Griswold,  37  Ohio  St.  311,  313. 

In  SlcgrlHt  V.  Arnot,  10  Mo.  App.  197,  it  is  said :  "  There  are  no  degrees 
of  notjU'^ence  known  to  the  law  where  the  subject  of  the  bailment  is 
human  life." 

However,  there  are  cases  adhering  to  the  common  law  classiflcation. 
Thus,  in  Chicago  &  N.  W.  Ry.  Co.  v.  Chapman  (30  111.  App.  504),  it  was 
held,  that  the  U-rms  "  gross  negligence  "  and  "  the  want  of  slight  care  " 
are  convertible ;  and  have  the  same  meaning.  See  Barnum  v.  Terpenning, 
75 Mich.  557;  42  New  Rep.  967;  Little  Rock,  M.  R.  &  T.  Ry.  Co.  v.  Haynes, 
47  Ark.  497;  1  S.  W.  Rep.  774;  City  of  Rockford  u.  Hallenbeck,  34  m. 
App.  40;  retrlc  v.  Columbia  &  G.  R.  Co.,  29  S.  C.  303;  7  S.  E.  Rep.  515. 


DIKiUKKS    OF    NKULIOKNCE.  25 

[23]  The  suhject  will,  therefore,  be  diviiled  in  the  next 
there  chapters  Into  — 

1.  Nefrlect  of  diitios  requiring  ordinary  care. 

'1.  Neglect  of  duties  requiring  skill,  or  an  extraordinary 
amount  of  care. 

3.  Neglect  of  duties  requiring  less  than  ordinary  care. 
These  chapters  are  divided  into  sections;  the  first  section 
of  the  first  chapter  dealing  with  ordinary  duties  of  people 
in  general,  or  ordinary  pi-ople,  while  in  the  other  sections 
certain  classes  of  persons  have  for  convenience  sake  been 
taken  separately.  The  principles  of  law  which  govern  them 
all  are  the  same,  but  when  it  has  to  be  decided  as  a  matter 
of  practice  whether  a  particular  act  is  negligent  or  not,  it  is 
u^ieful  (though  unscientilic)  to  refer  to  cases  where  the 
fads  have  been  of  a  similar  description.  For  instance,  the 
law  says  that  a  man  should  take  such  care  as  a  reasonably 
careful  man  would  take,  when  he  is  riding  along  a  road,  or 
when  he  is  selecting  workmen  to  perform  some  work  ;  but 
to  .'.ay  that  it  has  been  hold  negligence  to  spur  a  horse  in  a 
crowd  would  throw  very  little  light  upon  the  hiring  of  work- 
men, though  it  might  do  so  upon  the  question  whether 
whipping  a  horse  in  a  crowd  would  bo  negligence. 

Before  passing  from  the  definition  of  our  subject,  it  is 
necessary  to  explain  at  somewhat  greater  length  than  we 

ins    U«3;  thonRh   In  Amcric.-i   it  would  tain  l?sne  Is  proved,  per  Lord  Penzance, 

Kccm  timt  tho  i|u<*Htl<>n  of  ni-Kllgencc  is  t7>.  at  p.  1181.  The  judges  have  sometimes 

alwayn  a  qm-silon  for  tlio  jury,  Slicnr-  been  very  astute  to  dl8tx)ver  tliat  tliere 

man.iafpec.  11].     Upon  any  given  state  Is  no  evidence  to  go  to  tiie  jury  when  It 

of  fads  it  Is  for  the  judge  tosny  whether  would  neem  there  Is  some  apprehension 

ncKllKenre  ran  legitimately  be  Inferred,  of  prejudice,  see  the  case  of  Ellis  v.  Gt. 

and  the  Jury  whether  It  ought  to  be  In-  W.  Uy   Co.,  L.  U.  9  C.  P.  MI ;  43  L.  J.  C. 

fcrred.  Met.  Uy.  Co.  r.  Jackxon,  tupra.  P.   304,    where     four     learned    judges 

Where,  on  the  other  hand,  there  is  con-  thought  there  was  nothing  for  the  jury 

flIcUng  cvi'li'nce  on  a  <iU('Htion  of  fact,  where   the  plainlilT  swore  he  lu-ard  no 

the  judge,  wh.-itever  may  be  his  opinion  wliUtle,  and  beard  no  porter  call  out, 

as  to  the  value  of  the  evidence,  roust  be«iuso  the  fact  of  his  not  bearing  was 

leave  it  to  the  jury,  D.  W.  and  W.  Uy.  only  negative  evidence;  two  judges  dis- 

Co.  r.  Slattery,  L.  U.  3  App.  Gas.  ll.^S.  senled,  and  the  judge  at  the  trial  had 

The  duty  of  the  judge  is  to  declare  neg-  directed  the  jury   that  there  was  cvl- 

atlTcly  that  there  Is  no  evidence  to  go  to  dence. 
the  jury,  but  not  affirmatively  that  a  cor- 


26 


DEFINITION   AND   DIVISION   OF   SUBJECT. 


have  already  done  (/)  what  we  mean  by  the  term  ^^proxi- 
mately producing  injury." 

[24]  In  order  to  render  a  person  liable  for  damage  flowing 
from  his  negligence,  it  must  be  shown  that  the  damage  was 
the  ordinary  or  probable  consequence  of  the  act  {g). 
What  is  or  is  not  a  probable  consequence  of  a  particular 
act  is  of  course  not  a  matter  of  law,  but  of  common  sense. 

In  this  part  of  our  definition  of  negligence  the  word 
*' proximately  "  must  be  distinguished  from  the  word 
*'  culpable."  An  act  to  be  culpable,  that  is,  to  be  a  breach 
of  legal  duty,  must,  as  we  have  seen,  ante^  p.  2,  be  such  as 
a  reasonably  careful  man  would  foresee  might  be  produc- 
tive of  injury;  and  a  person  is  not  liable  for  an  injury 
which  he  could  not  foresee  {h).  But  a  breach  of  duty  to 
be  "  proximately  "  producing  injury  must  be  such  that, 
whether  the  defendant  could  foresee  the  injury  to  be  prob- 
able or  not,  the  breach  of  duty  is  in  fact  the  probable 
cause  of  the  injury  {^). 


(/)  Ante,v.Z. 

(fif)  Scott  V.  Shepherd,  1  Sm.  L.  C.  417 
(a  squib  thrown  from  one  to  another) ; 
Sharp  V.  Powell,  L.  R.  7  C.  P.  259 ;  41  L.  J. 
C.  P.  95.  If  the  chain  of  causation  is 
broken,  as  where  a  Are  spreads  and 
then  comes  to  a  place  where  its  course 
might  reasonably  have  been  stopped 
by  the  plaintiff,  the  defendant  Is,  as  it 
seems,  not  liable  for  further  damage, 
Kuhn  V.  Jewett,  32  N.  J.  Eq.  647.  This 
doctrine  is  part  of  the  well  known  legal 
maxim,  "  In  jure  non  remota  causa  sed 
proxima  spectatur,"  the  most  frequent 
illustration  of  which  is  to  be  found  in 
cases  of  marine  Insusance,  where  the 
question  of  what  was  the  Immediate 
cause  of  the  loss  becomes  material. 
The  cases  upon  this  subject  maybe  con- 
veniently studied  in  Broom's  Legal 
Maxims,  Mayne  on  Damages,  3rd  ed., 
p.  39.—  [By  "  proximate  cause"  Is  in- 
tended the  act  which  directly  produced, 
or  concurred  directly  in  producing  the 
injury.  By  "remote  cause  "  is  intended 
that  which  may  have  happened,  and 
yet  no  injury   have  occurred,  notwith- 


standing that  no  injury  could  have  oc- 
curred if  it  liad  not  happened. —  Troy  v. 
Cape  Fear  &  Y.  V.  R.  Co.,  99  N.  C.  298;  6 
S.  E.  Rep.  77.  It  is  of  ho  consequence 
whether  the  negligence  result  from 
omission  or  commission. —  Harriman  v. 
Pittsburgh,  C.  &  St.  L.  R.  Co.,  45  Ohio 
St.  11;  12N.  E.  Rep.  451.] 

(/i)  Blyth  V.  Birmingham  Water- 
works, ante,  p.  2. — [""  The  law  does  not 
undertake  to  hold  a  person  who  is 
chargeable  with  a  breach  of  duty  to- 
ward another  with  all  the  possible  con- 
sequences of  his  wrongful  act.  It  in 
general  takes  cognizance  only  of  those 
consequences  which  are  the  natural  and 
proximate  result  of  the  wrong  com- 
plained of,  and  which  in  the  language 
of  Pollock,  C.  B.,  in  Ragby  v.  Hewitt 
(5  Exch.  240),  may  be  reasonably  ex- 
pected, to  result,  under  ordinary  cir- 
cumstances, from  the  misconduct."— 
Lowery  v.  W.  U.  Tel.  Co.,  60  N.  Y.  198.] 

(i)  Pearson  v.  Cox,  L.  R.  2  C.  P.  D. 
369.  See  also  Nichols  v.  Marsland,  L.  K. 
2  Ex.  Div.  1 ;  46L.  J.  Ex.  174  (effects  of  an 
extraordinary  rainfall  might  have  been 


rUOXlMATE    CAUSK 


27 


Cases  involving  tho  doctrine  of  contributory  negligence 
are  reserved  for  another  chapter  (k),  for  although  tho 
question  is  substantially  in  tho!>e  cases  the  same  —  viz., 
whether  tho  act  of  the  defendant  is  remote  from  tlio 
damage  or  not  —  yet  the  intervention  of  the  plaintiff 
produces  some  degree  of  complication,  and  it  has  been 
thought  better  to  devote  a  separate  chapter  to  tlio 
subject.  The  cases  we  arc  now  considering  are  tlioso 
where  a  negligent  act  has  been  done  by  the  defendant, 
but  such  act  is  separated  from  the  injury  done  to  the 
l)laintift'  either  by  the  iuter[25]vention  of  third  parties  (/) 


prevented  but  conld  not  have  been  rea- 
sonably anticipated.  —  [The  general 
statement  of  the  text  Is  that  of  the  rule 
In  America  and  Is  supported  by  numer- 
ous cases.  Thus,  In  Hill  v.  Wlnsor, 
(118  Mass.  251),  the  court  said:  "The 
accident  must  be  caused  by  the  negli- 
gent act  of  the  defendants ;  but  it  Is  not 
necessary  that  the  consequences  of  the 
negligent  act  of  the  defendants  should 
have  been  foreseen  by  the  defendants." 
With  no  less  clearness  and  more  exact- 
uess  the  court.  In  Louisville,  etc.,  Ry. 
Co.  V.  Wood  (113  Ind.  544;  UN.  E. 
Uep.  57-2 ;  16  X.  E.  Uep.  197) ,  said :  "  There 
l8  a  plain  difference  between  a  wrong- 
ful act  audits  consequences;  for  when 
a  wrongful  act  Is  done,  tho  wrong- 
doer must  answer  for  all  the  proximate 
consequences,  although  ho  may  not 
have  foreseen  or  anticipated  the  par- 
ticular form  or  character  of  the  result- 
ing Injury."  See  Mexican  X.  R.  Co.  v. 
Mussette,  86  Tex.  708 ;  26  S.  W.  Rep.  .075 ; 
Derry  r.  Flctner,  118  Mass.  131;  Baxter 
r.  Chicago,  R.  I.  &  1'.  Ry.  Co.,  87  la.  488; 
54  X.  W.  Rep.  350;  Chicago  and  N.  W. 
Uy.  Co.v.  Prescott,  59  Fed.  Rep.  237;  8 
C.  C.  A.  109;  King  v.  Ohio  &  M.  Ry.  Co., 
24  Fed.  Rep.  335;  25  Fed.  Rep.  799; 
Foster  v.  Missouri  Pac.  Ry.  Co.,  115  Mo. 
165;  21  S.  W.  Rep.  91ii;  Armeudaiz  v. 
SUllman,67  Tex.  458;  3  S.  W.  Rep.  678; 
Lane  v.  Atlantic  Works,  lU  Mass.  136; 
Martin  i>.  St.  Louis,  etc.,  Ry.  Co.,  55  A. 
R.  510;  19  S.  W.  Rep.  314;  Omslaucr 
f.  Philadelphia  Co.,  31  Fed.  Rep.  354; 
Banks  v.  Wabash  W.  Ry.  Co.,    40   Mo. 


App.  458;  Gibson  v.  Delaware  &  II.  O. 
Co.,  65  Vt.  213 ;  26  At.  Rep.  70.] 

(k)  See  post,  Ch.  v. 

(l)  Burrows  v.  March  Gas  Co.,  L.  K. 
6  Ex.  67;  7  Ex.  96;  41  L.  J.  Ex.  46  (gas 
company  laid  defective  pipe ;  gas-fitter 
went  there  with  lighted  candle);  fsee 
Lannen  i".  Albany,  Gas  Light  Co.,  44  X, 
Y.  459] ;  —  [Railroad  Co.  v.  Kelly,  91 
Tenn.  705;  20  S.  W.  Rep.  312,  (goods  de- 
stroyed by  flre  on  account  of  defend- 
ant's failure  and  refusal  to  deliver  them 
when  demanded) ;  Board  Com'r.s  Sulli- 
van County  V.  Sissom,  2  Ind.  App.  311; 
28  N.  C.  Rep.  374  (plaintiff's  horse  was 
frightened  by  a  log  placed  by  the  road 
8ui)ervisors  at  the  approach  of  a  bridge 
from  which  plalntlrf  was  thrown  and 
Injured]  —  Sofleld  v.  Somers,  9  Ben.  526 
(thief  got  at  petroleum  and  drojiped 
lighted  match) ;  Ilill  v.  Xew  River  Co.,  9 
B.  &  S.  303  (defendants  threw  up  jet  of 
water  near  to  i)it  dug  by  contractors,  in- 
to which  a  horse  fell);  Collins  v.  Mid. 
Level  Commissioners,  L.  R.  4  C.  P.  2'0 
(defendants  negligently  constructed 
sluices;  plaintiff  dammed  them  up  ;  third 
parties  opened  the  dam) ;  Harrison  r.  OL 
N.  Ry.  Co.,  3  II.  &  C.  231  (defendants 
made  Insufficient  delph;  commissioners 
did  not  cleanse  river  below  ;  water  pen- 
ned back,  and  delph  burst) ;  Met.  Ity.  Co. 
V.  Jack.son,  3  App.  Cas.  193  (defendants 
negligently  permitted  crowd  to  get  into 
carriage ;  plaintiff's  thumb  injured  at  the 
next  station) ;  Lilley  v.  Doublnday,  7  Q. 
B.  D.  510  (goods  to  be  warehoused  at  A., 
warehoused  at  B.,  fire  there,  not  too 
remote). 


28 


DEFINITION    AND    DIVISION    OF    SUBJECT. 


or  the  forces  of  nature  (m)  or  distance  of  time  (n)  or 
space  (o). 

Where  the  intervention  of  third  parties  talses  place  it 
will  be  found  stated  in  some  text-books  that  such  inter- 
vention is  no  defense  in  any  case,  but  it  is  apprehended 
that  this  is  not  the  ground  of  the  decisions  cited  in  the 
note  ;  but  the  real  ground  of  those  decisions  is  that  the 
defendants'  acts  and  not  the  acts  of  third  parties  were  the 
**  proximate  cause  of  the  injury,"  but  if  the  acts  of  such 
third  parties  had  been  the  proximate  cause  of  the  injury 
the  defendants  would  not  have  been  liable  (p). 

[26]  Where  the  intervention  is  by  the  forces  of  nature, 
it  should  be  observed  that,  where  there  is  what  is  called  an 
act  of   God,  or  an  inevitable  accident,  the  defendants  will 


(m)  Smith  V.  L.  &  S.  W.  Ry.  Co.,  L.  R, 
5C.P.  98;6  0.  P.  14  ;  40  L.  J.  C.  P.  21,Ex. 
Ch.  (cut  grass  on  railway  bank;  wind 
blowing  fire  to  cottage  at  a  great  dis- 
tance). Bailiffs  of  Romney  Marsh  v. 
Trinity  House,  L.  R.  5  Ex.  208  (ship 
drifted  by  waves  against  plaintiff's 
sea  wall) ;  Sharp  v.  Powell,  ante,  p.  26 
(water  from  washing  van  frozen  into 
Ice,  upon  which  horse  slipped) ;  Moore 
V.  Gadsden,  87  N.  Y.  84;  41  Amer.  Rep. 
a52  (ice  from  melting  snow  on  roof) ; 
Evers  v.  Hudson  River  Co.,  18  Hun,  N. 
Y.  144  (ice  nnremoved  in  early  morn- 
ing) ;  —  [Smethurst  v.  Proprietors  I.  C. 
Church,  148  Mass.  261;  19  N.  E.  387, 
(snow  falling  from  roof  upon  plain- 
tiff's horse,  causing  It  to  run  away.]  — 
Sneesby  v.  L.  &  Y.  Ry.  Co.,  L.  R.  1.  Q.  B. 
D.  42;  45  L.  J.  Q.  B.  1  O.  A.  (trucks  sent 
down  line  so  as  to  frighten  cattle); 
Harris  v.  Mobbs,  L.  R.  3  Ex.  D.  26S  (van 
left  at  night  by  side  of  road  frightened 
plaintiff's  horse) ;  Hobbs  v.  L.  &  S.  W. 
Ry.  Co.,  L.  R.  10  Q.  B.  Ill  (plaintiff  and 
wife  taken  to  wrong  station  ;  held  de- 
fendant liable  for  delay,  but  not  for 
cold  caught  by  wife) ;  MacMahon  v. 
Field,  7  Q.  B.  D.  591  (defendant  let  his 
stables  to  another,  plaintiff's  horses 
turned  out  and  caught  cold,  not  too 
remote) ;  Workman  v.  G.  K.  Ry.  Co., 
32  L.  J.  Q.  B.  279  (land  flooded  to  a 
greater  extent  than  would  have  been) ; 


Walker  v.  Goe,  4  H.  &  N.  350;  28  L.  J. 
Ex.  184  (lock  fell  in  from  want  of  repair, 
not  from  want  of  notice  by  commis- 
sioners). Of  this  class  also  are  those 
cases  where  cattle  are  injured  by  some- 
thing done  by  them  in  consequence  of 
defendant's  negligence  in  not  repairing 
fences,  &c.,  see  Lawrence  v.  Jenkins, 
L.  R.  8  Q.  B.  274;  42  L.  J.  Q.  B.  147  (eat- 
ing yew  leaves) ;  Firth  v.  Bowling  Iron 
Co.,  L.  R.  3  C.  P.  D.  254;  47  L.  J.  C.  P. 
358  (eatlug  Iron  filings);  and  see  these 
cases  ;jost,  Ch.  II.,  s.  1. 

(n)  Jackson  v.  Met.  R.  Y.  Co.,  ante, 
[p.  27], 

(o)  Smith  V.  L.  &  S.  W.  Ry,  Co.,  supra; 
Crawfordsville  v.  Smith,  79  Ind.  308;  41 
Amer.  Rep,  612 ;  Cosgrove  v.  New  York 
Ry.  Co.,  [87  N.  Y.  88]  41  Amer.  Rep.  355 
(no  warning  signal,  horse  beyond  con- 
trol, got  over  line).  —  ["With  regard 
to  the  spreading  of  negligent  fires  the 
decisions  in  the  different  States  upon 
analogous  statements  of  fact  are  not 
uniform;  but  the  weight  of  the  author- 
ities, and  the  true  doctrine  Is,  that 
proximity  of  cause  has  no  necessary 
connection  with  contiguity  of  space  or 
nearness  of  time."  —  Webb's  Pollock  on 
Torts,  p.  43,  n.  citing  numerous  cases. 
See  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co. 
V.  Barker,  94  Ky.  71;  21  S.  W.  Rep,  347.] 

(p)  See  this  question  discussed  post, 
Ch.  v..  Contributory  Negligence. 


PROXIMATE    CAUSE.  20 

not  be  liable.  In  such  cases  there  is  not  only  such  an  in- 
lervcntion  as  may  make  the  acts  of  the  defendant  remotely 
connected  with  the  damajze,  but  also  such  as  render 
the  acts  of  the  defendant  positively  and  entirely  uncon- 
uected  {q). 

The  act  of  God  is  no  defense  except  in  cases  where  the 
defendant  can  show  that  the  damage  would  equally  have 
liappened  if  he  had  done  his  duty  (r),  and  care  must  be 
taken  to  see  whether  the  accident  is  due  to  an  act  of  God 
or  to  a  contemporaneous  act  of  the  defendant  (s).  If  a 
storm,  though  unusual,  is  not  unprecedented,  it  does  not 
come  within  the  category  of  acts  of  God  (/).  If  the  de- 
fendant can  show  that  he  has  provided  for  every  probable 
contingency  he  is  not  liable  further,  but  may  excuse  him- 
self for  not  providing  for  something  which  is  contrary  to 
all  previous  experience  (w). 

A  curious  case,  where  the  injury  was  held  not  to  be  too 
remotely  connected  with  the  breach  of  duty,  was  the  fol- 
lowing: A  young  child,  of  four  and  a  half  years,  was  found 
with  its  foot  cut  off,  shortly  after  leaving  home,  on  the 
railway,  close  to  where  a  footpath  crossed  the  line.  There 
was  no  gate,  although  it   was   the  defendants'    statutable 

(7)  G.  W.  Ry.,  of  Canada  v.  Fawcett,  (»)  Dixon  r.  Met.  Board  of  Works,  7 

1  Moo.  P.  0.  N.  S.  101  (storm  of  unusual  Q.  B.  D.  418  (opening  the  water  gates  of 

violence  breaking  down  railway  line);  a   sewer   in    time   of   flood);  Philadel- 

Alleghany   City  v.   Zimmerman,  95  Pa.  phla   Ry.    Co.  v.  Anderson,  [94  Pa.  St. 

St.  2ti7;  40  Anier.  Rep.  649  (flag  blown  351]  39  Am.  Rep.  787  (washing  down  by 

down  in  storm).    It  is  said  In  the  lat-  unusual    flood,   of   faultily-constructed 

ter  cane  that  a  "  man  Is  not  liable  for  railway  bank  —  [Lyon  v.  City  of  Ix)gans- 

iujorles  arising  from  a  conjunction  of  port,  9  Ind.    App.  R.  21 ;  35  N.    E.  Rep. 

ilia  own  faults  with  circumstances  of  an  128,)   the    fact   that     snow   had    fallen 

unprecedented    nature."    But    In   fact  on  an  Iron  gutter  crossing  which  had 

the  Injury   was   wholly  caused  by  the  previously   worn   smooth  and  slippery 

storm.  did  not  relieve  the  defendant  of  liability 

(r)  See  per  Fry,  J.,  In  Xltro-Phos-  to  a  traveler  who  was  injured  by  a  fall 

pkate  Co.  t>.  L.  &  St.  K.  Docks,  L.  R.  9  while  walking  over  the  crossing.] 

Ch.  D.  513;  City  of  Philadelphia,  r.  Gil-  {t)  Dixon  r.  Mot.    Board  of  Works, 

martin,  71   Pa.  St.  140,  per  Agnew,  J. ;  gupra. 

Kelghley's    Case,    10    Rep.    130   a;   see  (u)  Smith  i'.  Mnsgrave.S.  C. ;  Fletcher 

Withers  v.  North  Kent  Ry.  Co.,  27  L.J.  v.  Smith,  2  Api>.  Cas.  7(S1 ;  43  L.  J.  Ex. 

Ex.  417;  and  see  numerous  cases  as  to  70;  Blyth  v.  Birmingham  Waterworks, 

carrlenB  — see    "Brown    on   Carriers,"  11  Ex.  781. 
and  eeepogf,  Ch.  III.  s.  8. 


30  DEFINITION   AND   DIVISION   OF   SUBJECT. 

[27]  duty  to  place  one  across  the  path.  Had  the  ^ate  been 
there  the  child  might  have  turned  back  and  not  gone  on  the 
line,  so  that  the  omission  to  put  the  gate  might  be  the 
cause  of  the  child  going  there.  It  was  not  suggested  that 
there  was  any  contributory  negligence.  It  was  held  that 
the  child  being  found  injured  upon  the  line  was  sufficiently 
connected  with  the  breach  of  duty  in  not  putting  up  a  gate 
to  render  defendant  liable  («). 

It  may  be  that  the  negligent  act  of  the  defendant  would 
probably  by  itself,  and  unassisted,  have  produced  the  injury, 
but  that,  in  point  of  fact,  the  defendant's  act  has  received 
assistance  towards  producing  the  injury,  or  has  set  in 
motion  other  causes  tending  to  produce  the  injury.  In 
such  cases  the  defendant  will  be  liable.  And  even  if  the 
defendant's  act  could  not  have  done  the  injury,  except  it 
had  received  such  assistance,  or  set  in  motion  some  other 
cause,  yet  it  is  apprehended  the  defendant  would  in  many 
cases  be  held  liable,  although  it  is  impossible  to  say  in  what 
cases  he  would  be  so  held.  If  defendant's  act  were  very 
much  the  most  efficient  cause  he  would  be  liable ;  if  some 
other  cause  were  very  much  the  most  efficient  he  would  not 
be  liable;  but  where  the  defendant's  act  and  some  other 
cause  contribute  with  some  degree  of  equality  towards 
the  production  of  the  injury,  it  would  be,  as  a  matter  of 
fact,  a  great  difficulty  to  decide  whether  the  defendant  is 
liable.  Possibly  it  may  be  said  that  if  the  defendant's  act 
contributed  in  a  material  degree  he  is  liable. 

For  instance,  if  the  defendant  leaves  a  cart  unattended 
in  the  street,  and  a  person  passing  strikes  the  horse,  which 
runs  over  the  plaintiff,  the  defendant  would  be  liable,  al- 
th®ugh  the  act  of  a  third  person  was  one  immediate  cause  of 
the  injury ;  for  the  leaving  the  cart  unattended  was  a 
negligent  act,  the  probable  consequence  of  which  would  be 

{x)  Williams  v.  G.  W.  Ry.  Co.,  L.  R.  9  lected  any  duty,  and  there  was  nothing 

Ex.  157;  43  L.  J.  Ex.  105.    In  Singleton  v.  to  show  how  the  child  got  on  the  line. 

East.  C.  Ry.  Co.,  7  0.  B.  N.  S.  287,  It  did  —  [See  Baltimore  &  P.  R.  R.  v.  Reaney, 

not  appear   that    defendant   had    neg-  42Md.  117.] 


PROXIMATE  CAUSE.  31 

[28]  that  the  horse  might  start  (y).  The  defendant's  negli- 
gent act  is,  therefore,  the  proximate  cause  of  the  horse  start- 
ing. In  a  recent  case  of  Clark  z;.  Chambers  (z),  it  was  held, 
that  the  act  of  the  defendant  being  the  primary  cause  of 
the  injury,  it  was  immaterial  that  the  act  of  a  stranger  was 
the  immediate  cause.  It  is  not  quite  clear  what  meaning  is 
intended  to  be  attached  to  the  word  primary ;  but  from 
the  whole  of  the  judgment  it  appears  that  the  same  doc- 
trine as  stated  above  is  intended  to  be  laid  down,  viz., 
that  when  a  negligent  act  is  done  which  will  probably  lead 
to  injury,  and  which  does  lead  to  it,  it  is  immaterial  through 
what  probable  steps  it  passes.  It  should,  however,  be  ob- 
served that  Clark  v.  Chambers  was  one  of  those  cases  in 
which  the  defendant  is  dealing  with  a  dangerous  thing,  of 
which  he  is  bound  to  take  especial  care;  but  in  truth  that 
is  the  very  reason  why  his  not  taking  care  is  held  to  be  the 
chief  cause  of  the  mischief.  If  I  let  a  g-ood-tempered  dog 
loose  in  the  street,  and  a  stranger  strikes  him  and  is  bitten, 
the  bite  is  not  a  probable  consequence  of  my  act;  but  if  the 
dog  were  bad-tempered,  the  bite  would  be  the  probable 
consequence  («). 

(y)  See  Lynch  v.  Nardln,  1  Q.  B.  29,  stranger   moved    the  barrier  on  to  the 

^Fhe^e  a  child  got  into  a  cart  standing  at  footpath). 

a  door  unwatched ;  and  lUidge  v.  Good-  («)  Mangan  v.  Atterton,  4  II.  &  C. 

win,  5  C.  &  P.  192,  where  a  passer-by  3{?8  (machine  left  open  in  market-place, 

struck  a  horse.  played  with  by  boy,  is  practically  over- 

{z)  Clark  v.  Chambers,  L.  R.  3  Q.  B.  ruled  by  the   above   case  of   Clark   v. 

D.  327;  L.  J.  439  (defendant  put  spikes  Chambers). 
upon  a  barrier  across  roadway,  and  a 

Proximate  and  Remote  Cause, —  Whoever  does  a  vprongful  act  is 
answerable  for  all  the  consequences  that  may  ensue  in  the  ordinary  and 
natural  course  of  events,  though  such  consequences  be  immediately  and 
directly  brought  about  by  intervening  causes,  if  such  intervening  causes 
were  set  in  motion  by  the  original  wrong-doer. —  2  Thompson  on  Neg. 
1084. 

"  The  proximate  cause  of  an  injury  may,  in  general,  be  stated  to  be 
that  act  or  omission  which  immediately  causes,  or  fails  to  prevent  an 
injury;  an  act  or  omission  occurring  or  concurring  with  another,  which, 
had  it  not  happened,  the  injury  would  not  have  been  inflicted,  notwith- 
standing the  latter."  —  Deraiug  u.  Storage  Co.,  90  Tenn.  353;  17  S.  AV. 


32  DEFINITION   AND   DIVISION   OF   SUBJECT. 

[29]  There  is  also  a  class  of  cases  where  it  has  been 
sought  to  recover  damages  from  the  defendant  who  has  by 
his  acts    [30]     neglected  a  duty  which  he  owed  to  a  third 


Rep.  89.  See  ante,  p.  26;  also  Andrews  v.  Mason  City  &  Ft.  D.  R.  Co., 
77  la.  669;  42  N.  W.  Rep.  613;  Putnam  v.  New  York  C.  &  H.  R.  Co., 
47  Hun,  439;  Bunting  v.  Hogsett,  139  Pa.  St.  363;  21  S.  W.  Rep.  31;  id., 
139  Pa.  St.  363;  21  St.  Rep.  34;  Clyde  v.  Richmond  &  D.  R.  Co.,  59  Fed. 
Rep.  394;  Knapp  v.  Sioux  City  &  P.  Ry.  Co.,  65  la.  91;  50  Am.  Rep.  569; 
West  V.  Ward,  77  la.  323;  42  N.  W.  Rep.  309;  Ahern  v.  Oregon,  T.  &  T. 
Co.,  24  Ore.  276;  33  Pac.  Rep.  403;  35  Pac.  Rep.  549;  Ryan  v.  Miller,  12 
Daly,  17;  Jacksonville,  T.  &  K.  W.  Ry.  Co.  v.  Peninsular  L.  T.  &  M.  Co., 
27  Fla.  157;  9  So.  Rep.  661;  Poweus  v.  Thayer  Lumber  Co.,  92  Mich. 
533;  52  N.  W.  Rep.  937;  La  Duke  v.  Tp.  of  Exeter,  97  Mich.  450;  66  N. 
W.  Rep.  851;  McKeller  v.  Tp.  of  Monitor,  78  Mich.  485;  44  N.  W.  Rep. 
412. 

Illustrations. —  Fire  fell  from  a  locomotive  on  defendant's  road  upon 
a  horse  attached  to  a  wagon  in  the  street  below  upon  the  driver's 
hand .  The  horse  became  frightened  and  ran  away.  The  driver  attempted 
to  drive  him  against  the  curbstone  to  arrest  his  progress.  The  wagon 
passed  over  the  curbstone,  threw  the  driver  out  and  the  plaintiff,  who 
was  on  the  sidewalk,  was  run  over  and  injured.  In  an  action  to  recover 
for  the  injuries,  it  was  held  not  error  to  charge  that  if  the  fire  fell 
through  the  negligence  of  defendant,  causing  the  horse  to  become 
unmanageable,  and  run  against  the  defendant  inflicting  the  injury, 
defendant  was  liable. —  Lowrey  v.  Manhattan  Railway  Co.,  99  N.  Y.  158. 

Defendant  intentionally  directed  a  stream  of  water  from  a  hose  against 
a  team  of  horses  fastened  to  a  post  in  the  street  in  front  of  his  premises. 
The  horses,  frightened  thereby,  broke  loose,  ran  away,  and  collided  with 
plaintiff's  team.  Defendant  was  held  liable  for  injury  to  the  latter. — 
Forney  v.  Geldmacher,  75  Mo.  113;  42  Am.  Rep.  388. 

So  where  a  team  of  horses  frightened  by  a  locomotive  whistle,  wan- 
tonly sounded,  ran  away  and  collided  with  plaintiff's  horse,  causing  its 
death,  these  facts  were  held  to  constitute  a  good  cause  of  action  against 
the  railroad  company. —  Billraan  v.  Indianapolis  R.  R.  Co.,  76  Ind.  166. 

Both  the  occasional  and  the  continuous  blowing  of  locomotive  whistles 
have  been  repeatedly  decided  by  juries  to  be  the  immediate  cause  of 
injury  to  horses  which  ran  away  through  fright  from  the  noise. —  See 
Trittsv.  New  York  and  N.  E.  R.  Co.,  62  Conn.  503;  26  At.  Rep.  347; 
Louisville,  M.  A.  &  C.  Ry.  Co.  v.  Stanger,  7  Ind.  App.  179;  32  N.  E.  Rep. 
209;  St.  Louis,  I.  M,  &  S.  Ry.  Co.  v.  Roberts,  56  A.  R.  387;  19  S.  W. 
Rep.  1055. 

Where  a  municipal  corporation  left  a  dangerous  and  unfenced  ex- 
cavation in  a  public  street,  it  was  held  an  action  might  be  maintained 
against  it  by  the  owner  of  the  horse  carefully  driven  upon  the  street, 


PROXIMATE  CAUSE.  3^ 

party,  or  committed  a  breach  of  contract  with  a  third  party, 
and  the  [31]  effect  of  such  neglect  of  (hity  or  breach 
of  contract  has  been  to  injure  the  phiintiff,  and  it  has  been 


which  took  fright,  ran  away,  fell  into  the  excavation  and  was  killed. — 
City  of  Crawfordsville  v.  Smith,  79  Ind.  308;  41  Am.  Rep.  612. 

It  was  left  to  the  jury  In  another  case  to  determine  whether  the 
corporation  was  negligent  in  constructing  an  embankment  in  not  pro- 
viding it  with  a  sufficient  guard,  where  plaintiff's  horse  took  fright, 
overturned  his  buggy,  and  threw  it  down  the  embankment  of  the  street 
on  which  he  was  driving. —  City  of  Atlanta  v.  Wilson,  59  Ga.  455;  27 
Am.  Kep.  39G. 

Tlie  town  was  held  liable  for  an  injury  resulting  from  the  striking  of 
a  post  in  the  street  by  plaintiff's  wagon  drawn  by  a  frightened  team,  in 
Town  of  Fowler  v.  Linquist  (Ind.),  33  N.  E.  Rep.  133. 

And  whei'e  A.  was  injured  by  a  horse  driven  by  B.  on  the  highway, 
frightened  by  a  heap  of  snow  and  ice  wrongfully  made  on  the  highway  by 
C,  it  was  held  A.  could  maintain  an  action  against  C.  therefor  (Lee  v. 
Union  R.  Co.,  12  R.  I.  383;  34  Am.  Rep.  (i(iS),  or  against  the  town 
where  a  nuisance  was  placed  there,  and  permitted  to  remain  afterreason- 
able  notice.— Bennett  v.  Fifleld,  13  R.  I.  139. 

But  a  town  has  been  held  not  liable  for  damages  sustained  by  a  trav- 
eler from  the  fright  of  his  horse  at  meeting  cows  in  the  road  with  iioards 
on  their  horns,  and  also  from  a  defect  in  the  way,  the  combined  action  of 
both  causes  operating  to  produce  the  accident.  —  Perkins  v.  Inhabitants 
of  Fayette,  68  Me.  152;  28  Am.  Rep.  84.  See  2  Thorap.  Neg.,  pp.  1085, 
1086,  where  it  is  said  that  iu  Maine,  Massachusetts  and  Wisconsin,  the 
rule  is  that  where  the  injury  is  occasioned  by  a  defect  in  the  highway 
and  some  other  cause,  the  town  is  not  liable,  while  in  New  Hampshire, 
Illinois,  Kansas,  Connecticut  and  Pennsylvania,  a  different  doctrine 
prevails.  (In  Township  of  Westmahony  v.  Watson,  S.  C.  Pa.  21  Rep. 
733,  where  a  team  of  horses  being  frightened  by  an  obstruction, 
negligently  allowed  to  remain  upon  a  public  road  by  a  township,  ran 
away  and  were  found  dead  the  next  day  upon  a  railroad  track  more  than 
five  miles  from  the  scene  of  the  frightening,  having  been  killed  by  a 
locomotive,  it  was  held  the  negligence  of  the  township  was  too  remote 
a  cause  of  the  death  of  the  horses  to  render  the  township  liable 
therefor.) 

Where  plaintiff's  horses  being  frightened  by  a  steam  engine  placed  in  a 
public  street,  ran  away  and  their  fright  was  increased  by  the  jolting  of 
the  wagon  over  a  foot-crossing  and  the  consequent  rattling  of  the  staves, 
with  which  the  wagon  was  loaded,  and  the  plaintiff  jumped  from  the 
wagon  and  was  injured,  it  was  held  that  he  might  recover. —  Turner  v. 
Buchanan,  82  Ind.  147;  42  Am.  Rep.  485. 

Where  plaintiff  while  walking  in  a  path  on  an  embankment  by  the  aide 

8 


34  DEFINITION    AND   DIVISION   OF    SUBJECT. 

held  that  the  [32]  act  is  too  remotely  connected  with  the 
injury  (b);  but  as  has  been  already  stated,  if   he  owes  a 

(6)  Cattle  V.  Stockton   Waterworks  quence  of  the  wet  plaintiff  could  not 

Co.,  L.  R.  10  Q.  B.  453;  44  L.  J.  Q.  B.  139.  make  a  profit.    Held,  that  whether  K. 

(The  defendants  negligently  laid  a  pipe  conld  sue  or  not  for  himself,  or  as  a 

80  that  water  leaked  out  upon  K.'s  land.  trustee  for  plaintiff,  plaintiff  could  not 

K.  employed   plaintiff  to  dig  a  cutting  sue.) 
through  the  land  at  a  price.    In  conse- 

of  a  railroad  track  is  injured  by  a  cow  negligently  struck  by  a  train  and 
so  thrown  as  to  strike  the  ground  and  rebound  against  plaintiff,  the  injury 
is  the  proixmate  result  of  the  defendant  company's  negligence.—  Alabama, 
G.  S.  R.  Co.  V.  Chapman,  80  Ala.  615;  2  So.  Eep.  738,  citing  East  Tenn. 
V.  &  G.  R.  Co.  V.  Lockhart,  79  Ala.  315;  Alabama,  G.  S.  R.  Co.  v. 
Arnold,  80  Ala.  600;  2  So.  Rep.  337. 

Where  plaintiff  warned  defendant's  agent  of  the  danger  of  his  endeav- 
oring to  alone  carry  a  sewing  machine  without  taking  off  the  top.  Dis- 
regarding this  warning  the  agent  raised  the  machine,  attempting  to 
shoulder  it,  the  top  fell,  struck  the  wall  and  rebounded  to  the  floor  where 
it  broke  into  pieces,  and  a  flying  fragment  struck  and  destroyed  one  of 
plaintiff's  eyes.  Held,  that  the  negligence  of  the  agent  was  the  proximate 
cause  of  the  injury.—  White  Sewing  Machine  Co.  v.  Richter,  2  Ind.  App. 
331;  28N.  E.  Rep.  446; 

Where  defendant  negligently  ran  a  train  over  a  line  of  hose  which 
plaintiff  was  using  to  extinguish  the  fire  in  its  factory,  it  was  held  that 
the  severing  of  the  hose  was  the  proximate  cause  of  the  destruction  of 
the  building.— Metallic  C.  C.  Co.  v.  Fitchburg  R.  Co.,  109  Mass.  277. 

But  where  there  are  several  proximate  and  efficient  causes  contributing 
to  an  injury,  it  cannot  necessarily  be  attributed  to  one,  without  whose 
operation  it  would  not  have  happened.  As  where  a  blind  horse  became 
frightened  and  unmanageable,  and  owing  to  a  pile  of  ashes  left  in  the 
street,  in  passing  a  loaded  wagon,  collided  with  a  hydrant  nozzle,  not 
improperly  placed,  but  projecting  four  inches  from  the  gutter,  it  was  held 
the  owner  could  not  recover  of  the  city  for  the  consequent  injury  to  him- 
self and  sleigh  without  proof  that  the  ash  pile  caused  the  accident.  — 
Ring  V.  Cohoes,  77  N.  Y.  83,  reversing  13  Hun,  76.  See  Board  Com'rs. 
Boone  County  v.  Mutchler,  137  Ind.  140;  36  N.  E.  Rep.  534;  Cline  v. 
Crescent  City  R.  Co.,  43  La.  Ann.  327;  9  So.  Rep.  122;  Hampson  v.  Tay- 
lor, 16  R.  I.  83;  23  Atl.  Rep.  732. 

It  is  a  rule,  however,  that  where  two  proximate  causes  produce  an 
injury, —  one  arising  from  accident  and  the  other  from  negligence,  the 
negligent  party  is  alone  liable  in  damages.  Board  Com'rs.  Parke  County 
V.  Sappenfleld,  6  Ind.  App.  577;  33  N.  E.  Rep.  1012.  See  Nashua  I.  &  S. 
Co.  V.  Worcester  &  Nf  R.  Co.,  62  N.  H.  159. 

Remote  cause. —  The  negligence  must  be  the  proximate  and  not  the 
remote  cause  of  the  injury.     In  the  case  of  Bank  of  Commerce  v.  Ginoc- 


REMOTi:    CAfsH.  3') 

duty  towards  the  [33]  plaintiff  ( although  his  contract  may 
be   with  a  third   party),    ho  is  then  brought,  as  it  were, 

chio  (27  Mo.  App.  GGl),  the  court  said:  "  The  rule  Is,  thai  a  man  shall 
uot  be  held  to  pay  damages  because  he  has  failed  to  guard  the  world 
against  those  consequences  of  his  acts  or  omissions  which  are  contrary 
to  ordinary  experienge  and  which  ordinary  care  would  not  anticipate. 
The  rule  is  founded  upon  two  reasons.  The  one  has  reference  to  the 
Intlrmlty  and  imperfection  of  all  human  thought  and  action,  toward 
which  the  law  must  extend  some  indulgence,  the  other  rests  upon  the 
c  msideration  that  if  the  law  were  to  make  men  answerable  for  the  hap- 
pening of  such  remote  events,  litigation  would  be  endless."  See  Ewing 
w.  Pittsburgh,  etc.,  R.  Co.,  23  Pa.  St.  340;  23  Atl.  Rep. 340;  Smithv.  French, 
83  Me.  108;  21  Atl.  Rep.  739;  Richmond  &  D.  R.  Co.  v.  Moffelt,  88  Va. 
785;  14  S.  E.  Rep.  370;  Ctiildrey  v.  City  of  Huntington,  34  W.  Va.  457; 
12  S.  E.  Rep.  536;  West  Mahanoy  r. Watson,  112  Pa.  St.  574;  5G  Am.  Rep. 
336;  Pigott  v.  Lilly,  55  Mich.  150;  Zopflu.  Postal  T.  C.  Co.,  60  Fed.  Rep. 
987;  9  C.  C.  A.  Rep.  308;  Beall  v.  Tp.  of  Athens,  81  Mich.  536;  45  N.  W. 
Rep.  1014;  Pryor  v.  Louisville  &  N.  R.  Co.,  90  Ala.  32;  8  So.  Rep.  55; 
Sowles  V.  Moore,  65  Vt.  322;  26  Atl.  Rep.  629;  City  of  Albany  v.  Water- 
roller  T.  &  R.  Co.,  76  Hun,  136;  27  N.  Y.  S.  Rep.  848;  Mueller  v.  Milwau- 
kee St.  Ry.  Co.,  86  Wis.  340;  56  N.  W.  Rep.  914;  Texas  &  P.  Ry.  Co.  v. 
Doheny,  4  Tex.  App.  231,  15  S.  W.  Rep.  44;  Lynch  v.  Northern  P.  R. 
Co.,  84  Wis.  348;  54  N.  W.  Rep.  610;  Brown  v.  Laurens  County,  38  S.  C. 
282;  17  S.  E.  Rep.  21,  distinguishing  Acker  v.  Anderson  Co.,  20  S.  C.  498; 
Stacy  u.  Knickerbocker  Ice  Co.,  84  Wis.  614;  54  N.  W.  Rep.  1091 ;  Johnson 
V.  Northwestern  T.  E.  Co.,  54  Minn.  37;  55  N.  W.  Rep.  829;  Chicago,  St. 
P.,  &  M.  O.  Ry.  Co.  V.  Elliott,  55  Fed.  Rep.  949;  Hembling  v.  City  of 
Grand  Rapids,  99  Mich.  292;  58  N.  W.  Rep.  310;  Benson  v.  Central  Pac. 
R.  Co.,  98  Cal.  45;  32  Pac.  Rep.  809;  33  Pac.  Rep.  206;  Quill  v.  New  York 
C.  &  H.  R.  R.  Co.,  11  N.  Y.  S.  Rep.  80;  Cross  v.  California  St.  C.  Ry.  Co., 
102  Cal.  313;  36  Pac.  Rep.  673;  Mason  v.  Spartanburg  County,  40  S,  C. 
390;  19  S.  E.  Rep.  15;  Louisville  &  N.  R.  Co.  v.  Kelsey,  89  Ala.  287;  7  So. 
Rep.  648;  llerr  V.  City  of  Lebanon,  149  Pa.  St.  222;  24  AM,  Rep.  207;  30 
W.  N.  C.  248;  Barton  v.  Pepin  Co.  Ag.  Soc,  83  Wis.  19;  52  N.  W.  Rep. 
1129;  Caron  v.  City  of  Green  Bay,  72  Wis.  118;  39  N.  W.  Rep.  134;  Kelly 
r.  Manayunk  &  R.  L  P.  &  Ry.  Co.  (Pa.  St.),  12  Atl.  Rep.  598;  Merritt  i'. 
Kitziiibboi.s,  102  N.  Y.  302;  De  Maby  v.  Morgan,  L.  &  T.  R.  &  S.  S.  Co., 
45  La.  Ann.  1329;  14  So.  Rep.  61;  Keiffer  v.  Borough  of  Uummelstown, 
151  Pa.  St.  304;  24  Atl.  Rep.  1060. 

Where  a  passenger  on  a  railway  train,  being  directed  to  change  cars 
at  a  way  station  entered  another  car,  but  was  ordered  out  by  an  employe 
as  the  train  was  not  ready,  stood  a  short  time  on  the  platform  of  the  car 
and  then  stepped  to  a  neighboring  track,  and  while  waiting  there  was 
injured  by  another  train,  it  was  held  that  his  expulsion  was  not  the 
proximate  cause  of  the  injury.— Henry  f.  St.  Louis  Ry.  Co.,  76  Mo.  288; 


36  DEFINITION   AND   DIVISION   OF   SUBJECT. 

into  connection  with  the  [34]  plaintiff,  and  his  act  is  not 
too  remotely  connected  with  the  injury  (c). 

(c)  Levyv.  Langridge,  4  M.  &  W.  337;  Lumley  v.  Gye,  2  E.  &  B.  216;  Heaven  v. 
Pender;  see  these  cases  ante. 

48  Am.  Eep.  762.  See  McClelland  v.  The  Louisville,  etc.,  R.  Co.,  94  Ind. 
276;  Lewis  v.  The  Flint,  etc.,  Ry.  Co.,  54  Mich.  128;  23  Am.  L.  Reg,  604 
(citing  many  cases,  opinion  by  Cooley,  J.). 

A  railway  company  by  its  train  unlawfully  obstructed  a  village  street, 
and  S.  therefore  walked  around  the  rear  of  the  train,  entered  another 
street  and  there  having  selected  one  of  the  several  routes  to  her  home 
slipped  on  some  ice,  fell  and  sustained  serious  injury.  The  same  com- 
pany had  placed  the  ice  there  in  the  process  of  clearing  its  track,  which 
occupied  a  part  of  the  street.  It  was  held  that  though  the  proximate 
cause  of  the  injury  was  the  placing  the  ice  in  the  street,  if  the  railway 
company  was  not  in  fault  in  so  placing  the  ice,  it  was  not  liable  for  the 
injury  caused  by  the  fall. —  Pittsburg,  etc.,  Ry.  Co.  v.  Staley,  41  Ohio  St. 
118;  see  Jackson  v.  N.  C.  &  St.  L.  R.  Co.;  13  Lea,  491;  19  C.  L.  J.  491; 
City  of  Lancaster  v.  Kissinger,  1  Pa.  S.  C.  250;  Kistner  v.  City  of 
Indianapolis,  100  Ind.  210;  Stanton  y.  Louisville  &  N.  R.  Co.,  91  Ala.  382; 
8  So.  Rep.  798;  Selleck  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  58  Mich.  195; 
Brown  v.  Wabash,  St.  L.,  etc.,  Ry.  Co.,  20  Mo.  App.  222. 

A  passenger  who  was  carried  a  short  distance  past  the  station  by 
defendant's  train  was  misinformed  by  the  conductor  as  to  the  position  of 
the  train.  He  soon  discovered  that  he  was  south  of  a  cross-road  he 
meant  to  take  in  going  home  instead  of  north  of  it  as  he  was  told  by  the 
conductor.  He  was  familiar  with  the  neighborhood  and  knew  that  where 
the  road  crossed  the  track  there  was  a  cattle-guard  similar  to  one  over 
which  he  had  intended  to  cross.  In  crossing  this  cattle-guard  he  fell  and 
was  injured.  Held,  that  defendant's  negligence  in  misinforming  him  was 
not  the  proximate  cause  of  the  injury. — Lewis  v.  Flint  &  P.  M.  Ry.  Co., 
54  Mich.  55 ;  52  Am.  Rep.  780. 

Where  plaintiff  went  off  of  a  defective  highway  into  an  adjoining  field 
and  was  there  injured,  the  defect  in  the  highway  was  held  to  be  the  re- 
mote cause  of  the  injury.  — Tisdale  v.  Norton,  8  Mete.  388;  see  Dubuque 
Wood,  etc.,  Ass.  v.  Dubuque,  30  la.  176;  Daniels  v.  Ballantine,  23  Ohio 
St.  532;  McClary  v.  Sioux  City,  etc.,  R.  Co.,  3  Neb.  44;  Scheffer  v. 
R.  R.  Co.,  105  U.  S.  249.  So,  where  a  construction  company  under  a 
contract  with  the  city  to  make  improvements,  so  obstructed  the  street 
that  only  a  narrow  opening  was  left  in  the  material  and  plaintiff's  minor 
son  passed  through  this  opening,  stepped  in  front  of  a  street  car  and 
was  killed :  it  was  held  the  acts  of  the  construction  company,  and  the 
city  were  but  the  remote  cause  of  the  injury.  —  Stanley  v.  Union  Depot 
R.  Co.,  114  Mo.  606;  21  S.  W.  Rep.  832. 

Where  plaintiff,  who  was  engaged  in  carrying  passengers  from  a  hotel 


REMOTE   CAUSE.  37 

[3r>]  It  is  no  defense  that  the  injury  which  hiis,  in  fact, 
happened,  is  by  reason  of  other  circumstances  greater  in  de- 

to  defendant's  depot,  was  compelled  to  stop  and  wait  for  a  train  which 
obstructed  the  street  for  more  than  Ave  minutes,  in  violation  of  the  stat- 
ute to  move  on  or  divide  and  let  him  pas.«,  when  a  passenj^er  train  came 
by  and  the  blowing  of  the  steam  and  noise  of  the  cars  frightened  his 
horses  and  they  ran  away  and  he  was  seriously  injured,  it  was  held  that 
no  negligence  being  shown  in  the  management  of  the  passenger  train, 
he  could  not  recover,  as  the  statutory  negligence  in  allowing  the  freight 
train  to  obstruct  the  street  was  not  the  proximate  cause  of  the  injury. 
—  Sellick  V.  Lake  Shore  &  M.  S.  R.  Co.,  58  Mich.  105. 

Where  plaintiff  had  been  safely  driven  past  a  pile  of  stones  and  a 
hole  in  the  road,  when  his  horse  became  frightened  upon  seeing  a 
donkey,  turned,  broke  the  axle  of  his  buggy,  and  ran  back,  dragging  the 
broken  axle  which  caught  in  the  hole,  upset  the  buggy  and  injured  him, 
it  was  held,  that  the  township  was  not  liable.  The  court  said  "  But  for 
the  fright  of  the  horse,  and  the  driver's  loss  of  control,  they  would  have 
continued  their  journey,  and  of  course  the  accident  would  not  have  hap- 
pened." —Schaeffer  u.  Tp.  of  Jackson,  150  Pa.  St.  U5;  2-t  Alt.  Ilep.  629. 

Where  a  child  of  about  four  years  of  age  living  near  a  railroad,  strayed 
across  the  tracks  to  the  side  opposite  his  house.  Then,  on  account  of 
defendant's  failure  to  fence  its  tracks,  as  it  was  required  by  statute,  the 
child  wandered  into  the  adjoining  land  where  it  fell  into  a  ditch  contain- 
ing water  and  was  injured.  Held,  that  the  duty  of  the  railroad  company 
did  not  extend  further  than  to  protect  the  plaintiff  from  injury  while  on 
its  own  premises.  —  Morressey  v.  Providence  &  W.  R.  Co.,  15  R.  I.  271 ;  3 
Atl.  Kep.  10.  Citing  Smith  v.  Tripp,  13  R.  1. 152.  See  Gordon  v.  Chicago, 
S.  F.  &  C.  Ry.  Co.,  44  Mo.  App.  201. 

Intervention  of  Third  Person.  —  If  the  negligence  of  defendant  would 
not  have  caused  the  injury,  but  for  the  intervening  negligence  of  a  third 
person,  the  defendant  will  not  be  liable. — Carter  v.  Towne,  103  Mass. 
407;  Hofnagle  v.  R.  R.  Co.,  55  N.  Y.  608;  Parker  w.  Cohoes,  10  Ilun,  531; 
Otten  V.  Cohen,  1  N.  Y.  S.  Rep.  430;  Davis  v.  Williams,  4  Ind.  App.  487; 
31  N.  C.  Rep.  204;  Lee  v.  Vacuum  Oil  Co.,  7  N.  Y.  S.  Rep.  426;  Mars 
V.  Delaware  &  H.  C.  Co.,  64  Hun,  625;  8  N.  Y.  S.  Rep.  107;  Noble.svllle 
G.  &  I.  Co.  V.  Loehr,  124  Ind.  79;  24  N.  E.  Rep.  579;  Mclutire  v.  Rob- 
erts, 149  Mass.  450;  22  N.  E.  Rep.  13.  To  illustrate:  Where  some  un- 
known third  party  unlawfully  placed  upon  the  railroad  track  a  "push 
car,"  which  had  been  left  near  by  employes  of  defendant,  causing  the 
accident  by  which  plaintiff  was  injured,  it  was  said  by  the  court: 
"While  the  company  is  bound  to  use  great  care  in  order  to  keep  its  track 
clear  for  the  safety  of  its  passengers  and  employes,  it  is  not  responsible 
for  the  unlawful  act  of  some  third  party  in  placing  obstructions  upon  the 
track  without  its  knowledge  or  consent,  unless  it  be  in  a  case  where  it 
had  by  its  conduct  done  some  act  which  it  might  reasonably  have  anticl- 


38  DEFINITION    AND    DIVISION    OF   SUBJECT. 

[36]  giee  than  would  probably  happen  (cZ).  For  instance,  if 
a  man  negligently  sets  fire  to  his  own  house  it  is  not  probable 

(d)  See  Smith  v.  L.  &  S.  W.  Ry.  Co.  in  Exch.  Ch.,  supra.  See  also  post,  Contri- 
butory Negligence,  Ch.  V. 

pated  would  lead  to  the  placing;  of  the  obstruction  upon  the  track."  — 
Harris  v.  Union  P.  R.  Co.,  18  Fed.  Rep.  591. 

But  when  the  negligence  of  A.  and  B.  combined  result  in  injury  to  C,  the 
concurrent  negligence  of  B.  will  be  no  defense  to  an  action  against  A. — 
Eaton  V.  Boston,  etc.,  R.  Co.,  11  Allen,  600;  Martin  u.  North  Star  Iron 
Works,  31  Minn.  407;  Delaware,  etc.,  R.  Co.  v.  Salmon,  39  N.  J.  L. 
299;  Atkinson  u.  Goodrich  Transportation  Co.,  60  "Wis.  141:  Hunt  v. 
Missouri  R.  Co.,  14  Mo.  App.  160;  McClure  v.  City  of  Sparta,  84  Wis. 
269;  54  N.  W.  Rep.  337;  McMahon  v.  Davidson,  12  Minn.  357;  Phillips  v. 
DeWald,  79  Ga.  732;  7  S.  E.  Rep.  151;  Rompillon  v.  Abbott,  1  N.  Y.  S. 
Rep.  662;  Noblesville  G.  &  I.  Co.  v.  Teter,  1  Ind.  App.  322;  27  N.  E.  Rep. 
635;  Lane  v.  Atlantic  Works,  111  Mass.  136,  Johnson  v.  Northwestern 
Tel.  Ex.  Co.  (48  Minn.  433),  51  N.  W.  Rep.  225;  Murdock  v.  Walker,  43 
ni.  App.  590. 

Thus,  where  a  village  sidewalk  was  of  an  unsafe  height  and  without 
guards,  a  person  negligently  pushed  off  by  a  third  person  and  injured 
may  maintain  an  action  against  the  village. —  Village  of  Carterville  v. 
Cook,  129  111.  152;  22  N.  E.  Rep.  14.  But  where  a  person  was  willfully 
seized  and  thrown  by  another  into  an  excavation  in  the  street,  the  town 
is  not  liable  for  his  injury. —  Alexander  v.  Town  of  New  Castle,  115  Ind. 
51;  17  N.  E.  Rep.  200. 

C.  may  hold  either  or  both  liable. —  Johnsons.  Chicago,  etc.,  R.  Co., 
31  Minn.  57;  Lake  v.  Milliken,  62  Me.  240;  16  Am.  Rep.  456;  Ricker  v. 
Freeman,  50  N.  H.  420;  9  Am.  Rep.  267;  BurrellTp.  w.  Uncapher,  117  Pa. 
353;  11  Atl.  Rep.  620,  see  note;  Wilder  v.  Stanley,  65  Vt.  145;  26  Atl. 
Rep.  189. 

Where  defendant  left  an  open  barrel  of  flsh  brine  in  a  city  street,  and 
another  person  without  his  knowledge  or  authority  emptied  the  barrel 
into  the  street,  and  the  plaintiff's  cow  lawfully  running  at  large  in  the 
street  drank  the  brine  and  was  killed,  defendant  was  held  liable. —  Henry 
V.  Dennis,  93  Ind.  452,  a  case  said  to  be  wrongly  decided,  47  Am.  Rep.  381. 

Neither  does  the  intervening  negligence  of  a  third  person  relieve  the 
first  wrong-doer  from  liability,  if  such  intervening  act  was  one  which 
would  ordinarily  be  expected  to  flow  from  his  negligence —  Pastene  v. 
Adams,  49  Cal.  87;  Griggs  v.  Fleckenstein,  14  Minn.  81;  Lane  v.  Atlantic 
Works,  111  Mass.  140;  Weick  u.  Lander,  75  111.  93;  Howe  v.  Ohmart,  7 
Ind.  App.  32;    33  N.  E.  Rep.  466. 

Two  boys,  one  aged  ten  and  the  other  twelve  years,  purchased  of  a 
dealer  cartridges  for  use  in  a  toy  pistol  and  were  instructed  by  the  dealer 
how  to  use  them.     It  was  against  the  statute  to  sell  pistol  cartridges  to 


I'UOXl.MATi:    CAUSK  —  CONTJaiiLTOlJY    NEGLIGENCE.        39 

r37]  that  he  will  huru  down  the  whole  street,  yet  he  will  he 
liable  for  the  injury  clone  to  the  house  at  the  far  end  of  it  ; 

minors.  The  dealer  knew  of  the  dangerous  character  of  the  articles,  and 
iliat  the  boys  were  iiullt  to  be  intrusted  with  them.  Another  boy  six 
years  old  shortly  afterwards  picl<ed  up  a  toy  pistol  containing  one  of  the 
cartridges  and  discharged  it,  killing  one  of  the  boys  who  bought  the  car- 
tridges. It  was  held  that  the  dealer  was  liable  for  the  death  of  the  boy 
killed.—  Biuford  v.  Johnston,  82  Ind.  42G;  42  Am.  Rep.  609. 

Intervention  of  Plaintiff. —  The  act  of  the  person  injured  may  inter- 
vene, and  tliis  may  give  rise  to  the  question  whether  he  is  guilty  of  con- 
tributory negligence,  a  subject  which  will  be  treated  of  hereafter. 

But  where  the  negligence  of  the  defendant  places  the  plaintiff  in  a  posi- 
tion of  peril  and  acting  under  the  sudden  impulse  of  the  moment  he 
attempts  to  escape  from  it,  and  in  doing  so  incurs  danger  which  he 
might  otherwise  have  avoided,  he  is  not  guilty  of  contributory  negligence 
such  as  will  defeat  an  action. —  Smith  v.  St.  Paul,  etc.,  Ry.  Co.,  30  Minn. 
1G9;  Pennsylvania,  etc.,  R.  Co.  v.  Werner,  89  Pa.  St.  69;  Iron  R. 
Co.  V.  Mowery,  3G  Ohio  St.  418;  38  Am.  Rep.  597;  Wilson  v.  Northern 
Pac,  R.  Co.,  2G  Minn.  278;  47  Am.  Rep.  410;  Collins  v.  Decker,  20 
Hun,  173;  Noble  v.  St.  Joseph  &  B.  H.  St.  Ry.  Co.,  98  Mich.  249;  57  N. 
W.  Rep.  12G;  Lowery  v.  Manhattan  R.  Co.,  99  N.  Y.  158;  1  N.  E.  Rep. 
C09,  supra,  p.  32;  La  Prelle  v.  Fordyce,  4  Tex.  Civ.  App.  391;  23  S.  W. 
Rep.  453;  Miner  v.  Conn.  River  R.  Co.,  153  Mass.  308;  2G  N.  E.  Rep- 
995;  Bischoff  r.  People's  Ry.  Co.,  121  Mo.  21C;  25  S.  W.  Rep.  908;  Buchan- 
an V.  West  Jersey  R.  Co.,  52  N.  J.  L.  265;  19  Atl.  Rep.  224;  Grand  Rapids 
&  I.  R.  Co.  V.  Cox,  8  Ind.  App.  29;  35  N.  E.  Rep.  183;  Quill  v.  New  York 
Cent.  &  II.  R.  R.  Co.,  11  N.  Y.  S.  Rep.  80;  Vallo  v.  U.  R.  Exp.  Co.,  147 
Pa.  St.  404;  23  Atl.  Rep.  594;  29  W.  N.  C.  423;  Ladd  v.  Foster,  31  Fed. 
Rep.  827;  Purcell  v.  St.  Paul  City  Ry.  Co.,  48  Minn.  134;  50  N.  W.  Rep. 
1034 ;  Town  of  Pre.scott  v.  Connell,  22  Can.  S.  C.  Rep.  147. 

And  though  the  injury  may  be  increased  by  the  unskillful  treatment  of 
the  physician  or  surgeon  whom  plaintiff  has  employed,  if  he  has  exer- 
cised reasonable  care  in  selecting  such  physician  or  surgeon,  he  may 
recover  to  the  full  extent  of  the  actual  damage  incurred. —  Loeser  v. 
Humphrey,  41  Ohio  St.  378;  Collins  v.  Council  Bluffs,  32  la.  324;  Rice  v. 
Des  Moines,  40  la.  G38;  Pullman  Palace  Car  Co.,  v.  Bluhm,  109  111.  20; 
St.  Louis  &  S.  F.  Ry.  Co.  v.  Doyle  (Tex.  Civ.  App.),  25  S.  W.  Rep.  4G1. 

Such  a  case  differs  from  one  of  malpractice  where  the  negligence  of 
physician  and  patient  concur — Brown  i'.  Marshall,  47  Mich.  57G. 

Nor  does  the  fact  that  plaintiff  was  engaged  in  violating  the  law  at  the 
time  of  the  injury  bar  his  right  of  action,  unless  such  violation  was  the 
proximate  and  e'llcient  cause  of  the  injury,  as  for  example,  driving  on 
the  wrong  side  of  the  road.—  Spofford  v.  Harlow,  3  Allen,  176. 

Smoking  a  cigar  in  the  street  in  violation  of  a  municipal  ordinance.— 
Baker  v.  Portland,  58  Me.  199. 


40  DEFINITION    AND    DIVISION    OF    SUBJECT. 

[38]    but  if  a  lighted  stick  flew  into  an  adjoininoj  street  and 
there  frightened  the  plaintiff's  horse,  he  would  not  be  liable 

Placing  a  wagon  in  the  street  for  the  purpose  of  unloading  il  in  such 
a  position  as  to  violate  a  city  ordinance. —  Steele  v.  Burkhardt,  104 
Mass.  69. 

Traveling  on  Sunday. —  Phila.,  etc.,  R.  Co.  v.  Thila.  Tow  Boat  Co., 
23  How.  209;  Piolett  u.  Simmers,  106  Pa.  St.  95;  Plats  u.  Cohoes,  89 
N.  Y.  219;  Baldwin  v.  Barney,  12  R.  I.  392;  Kuowltou  v.  Milwaukee  City 
Ry.  Co.,  59  Wis.  278;  Schmid  v.  Humphrey,  48  la.  652;  SO  Am.  Rep.  414; 
Sewell  V.  Webster,  59  N.  H.  586;  Wentworth  v.  Jefferson,  60  N.  H.  158; 
Opsahl  V.  Judd,  30  Minn.  126;  Delaware  L.  &  W.  R.  Co.  v,  Trautwein, 
52  N.  J.  L.  169;  19  Atl.  Rep.  178. 

Though  it  has  been  held  in  some  of  the  New  England  States  that  an 
action  would  be  thereby  barred.  —  Davis  v.  Sommerville,  128  Mass.  594; 
35  Am.  Rep.  399;  Wallace  v.  Merrimack  River  Nav.,  etc.,  Co.,  134  Mass. 
95;  Bucher  v.  Fitchburg  R.  Co.,  131  Mass.  156;  41  Am.  Rep.  216; 
Day  «.  Highland  St.  R.  Co.,  135  Mass.  113;  46  Am.  Rep.  447;  Johnson 
V.  Irasburg,  47  Vt.  28;  19  Am.  Rep.  Ill;  Holcomb  v.  Danby,  51  Vt. 
438;  Hinckley  v.  Penobscot,  42  Me.  89;  see  Davidson  u.  Portland,  69  Me. 
116;  31  Am.  Rep.  253;  Bucher  v.  Cheshire  R.  Co.,  8  Sup.  Ct.  Rep.  974. 

Unless  the  defendant's  conduct  amounts  to  willfulness  or  a  reckless 
disregard  of  another's  rights. —  Wallace  v.  Merrimack  Riv.  Nav.,  etc., 
Co.,  134  Mass.  95;  Banks  v.  Highland  St.  Ry.  Co.,  136  Mass.  485. 

Of  Defendant. —  The  negligence  of  the  defendant  may  intervene  and 
he  will  be  liable  for  the  injuries  which  result  therefrom  or  the  damages 
occasioned  thereby.  In  Bostwick  v.  Minneapolis  &  P.  Ry.  Co.  (2  N.  D. 
440;  51  N.  W.  Rep.  781),  the  court  stated  the  rule:  "  Where  a  person 
has  been  negligent  and  another  person  knowing  of  such  negligence  fails 
to  use  ordinary  care  to  prevent  an  injury  which  the  antecedent  negligence 
rendered  possible  and  the  injury  follows  by  reason  of  such  failure,  the 
negligence  of  the  second  person  is  the  sole  proximate  cause  of  the 
injury."  See  Clark  v.  Wilmington  &  W.  R.  Co.,  109  N.  C.  430;  14  S.  E- 
Rep.  43;  Cincinnati,  H.  &  D.  R.  Co.  v.  Kassen,  49  Ohio  St.  230;  31  N.  C. 
Rep.  282;  Central  Pass.  Ry.  Co.  v.  Rose  (Ky.),  22  S.  W.  Rep.  745;  Will- 
iams V.  Edmunds,  75  Mich.  92;  42  N.  W.  Rep.  534. 

As  where  a  child  on  the  track  was  discovered  by  a  car  driver  in  time 
to  have  avoided  the  accident  and  injury  to  the  child  which  followed,  it 
was  held  that  the  child's  negligence  would  not  defeat  its  recovering 
damages. —  Huerzeler  v.  Central  Cross  Town  R.  Co.,  20  N.  Y.  S.  Rep. 
676;  1  Misc.  Rep.  136.  See  Newport  News  &  M.  V.  Co.  v.  Howe,  62  Fed. 
Rep.  362;  3C.  C.  A.  121;  6  U.  S.  App.  172. 

And  where  the  falling  of  a  ship  berth  and  the  screams  of  passengers 
paralyzed  plaintiff  with  fear,  so  that  she  was  rendered  helpless,  and  in 
this  condition  she  was  removed  from  her  berth  and  being  placed  on  her 
leet  was  thrown  by  the  rolling  of  the  ship  against  an  open  door  and  was 


PKOXIMATE    CAUSE  —  CONTUIBUTOUY   NEOLIOKNCE.         41 

for   llic   cunseiiucnL   injury    us   being  too  reaujLc.      Where, 
however,  the  injury  done  by  the  negligence  of  the  defendant 


picked  up  and  put  In  a  wet  place  where  she  remained  until  the  berths 
were  repaired  aiui  tiien  put  bacli  In  her  berth,  the  ship  company  was 
held  liable  for  the  injuries  occasioned  by  the  fall  of  the  berth  ami  the 
subsequent  wetting. —  Smith  v.  British,  etc.,  Steam  Pacliet  Co.,  8G  N.  Y. 
408. 

And  where  defendant,  an  unlicensed  liquor  seller,  on  Sunday,  in  viola- 
tion of  the  statute,  furnished  D.  intoxicating  liquor  to  drinli  upon  which 
1).  becaine  intoxicated  and  unconscious,  and  the  defendant  put  D.  in  this 
couilitiou  into  his  vehicle  drawn  by  a  gentle  horse  which  he  had  borrowed 
of  the  plaintiff,  and  by  reason  of  his  intoxication  and  inability  to  manage 
the  horse,  it  ran  away  and  was  killed,  it  was  held  that  an  action  would 
He  for  its  value. —  Dunlap  v.  Wagner,  85  Ind.  629;  44  Am.  Rep.  42. 

In  an  action  to  recover  damages  to  the  estate  of  plaintiff's  decedent 
caused  by  selling  liquors  to  him  by  which  he  became  intoxicated  and 
expelling  him  from  a  saloon  late  at  niglit,  thereby  causing  his  death  from 
exposure,  it  was  held  that  instructions  that  the  purchase  and  drinliing  of 
the  ll()Uor  by  the  deceased  constituted  contributory  negligence  which 
would  bar  a  recovery,  were  erroneous. —  Weymire  v.  Wolf,  52  la.  533. 

See  Schroeder  v.  Crawford,  1)4  111.  357;  34  Am.  Rep.  23G,  where  an  In- 
toxicated person  going  home  at  night  had  to  cross  a  railroad  tracl<  and 
next  morning  he  was  found  on  the  tracli  liilled  by  being  run  over  by  the 
cars.  It  was  held  that  the  intoxication  was  the  proximate  cause  of  his 
death,  and  the  owner  of  the  premises  where  the  liquor  was  sold  was 
liable  under  the  Civil  Damage  Act  to  his  widow  for  injury  to  her  means 
of  support. —  Emory  v.  Addis,  71  111.  273,  is  cited  to  the  same  effect. 
But  where  the  intoxicated  person  was  assaulted  and  killed  by  a  third 
person,  it  was  held  that  the  seller  was  not  liable  in  damages  to  his  widow 
for  his  death.—  Shugart  v.  Egan,  83  111.  50;  25  Am.  Rep.  359. 

Intervention  of  the  Forces  of  Natvire. —  Examples  of  this  kind  are 
found  iu  cases  where  the  plaintiff  has  suffered  from  exposure  to  the 
weather,  the  negligence  of  the  defendant  being  held  to  be  the  proximate 
cause  of  the  resulting  injuries. 

Where  the  axle  of  plaintiff's  carriage  broke  by  reason  of  a  defect  in  the 
road  and  he  was  dragged  from  the  dash  board,  and  he  procured  another 
carriage  and  drove  several  miles  to  his  home,  during  which  time  he  was 
exposed  to  the  cold  and  rain,  the  exposure  was  held  to  be  the  proximate 
result  of  the  accident. —  Ehrgott  v.  Mayor,  etc..  New  York,  9G  N.  Y.  2(J4. 

So  where  railroad  passengers  have  been  carried  beyond  the  station 
or  being  wrongfully  ejected  have  incurred  illness  from  such  exposure 
and  exertion  in  the  endeavor  to  secure  a  place  of  safety,  the  defendant 
has  been  held  responsible  therefor. —  Cincinnati,  etc.,  R.  Co.  v.  Eaton, 
94  Ind.  474;  I.  &  G.  N.  Ry.  Co.  v.  Terry,  «2  Tex.  380.  See  Welghtman  v. 
Louisville,  N.  0.  &  T.  Ry.  Co.,  70  Miss.  5G3;   12  So.  Rep.  68G. 


42  DEFINITION   AND   DIVISION   OF   SUBJECT. 

is  separable  from  that  arising  from  another  cause,  so  that 
it  can    be  fairly  seen  how  much  of  the  injury  is  due  to  the 

The  same  principle  has  been  announced  in  other  cases. —  Drake  v. 
Kiely,  93  Pa.  St.  492;  Williams  w.  Vanderbilt,  28  N.  Y.  217;  Evansville, 
etc.,  R.  Co.  V.  Kyte,  6  Ind.  App.  62 ;  32  N.  E.  Rep.  1134.  But  see  Waterman 
V.  Chicago  &  A.  R.  Co.,  82  Wis.  613;  52  N.  W.  Rep.  247,  1136. 

"Where  a  laborer  employed  in  the  construction  of  a  railroad  is  sent  by 
his  employer  to  a  high  mountain  pass  where  without  suitable  board  he 
"  was  compelled  to  sleep  on  the  cold,  wet,  and  frozen  ground,  without 
anything  under  him  except  damp  branches  of  pine  or  spruce  trees,  and 
without  sufficient  blankets  or  bedclothes  to  cover  him,  and  protect  him 
from  the  cold,  whereby  plaintiff  was  taken  dangerously  sick  from  such 
exposure,"  his  complaint  is  good  on  demurrer. —  Clifford  u.  Denver,  S. 
P.  &  P.  R.  Co.,  9  Colo.  333;  12  Pac.  Rep.  219. 

Where  a  husband  and  wife,  who  was  pregnant,  by  misdirection  of  the 
railway  company's  servants  got  off  at  the  wrong  station,  and  the  walk- 
ing to  a  place  of  safety  brought  on  a  miscarriage,  the  company  was 
held  liable  for  the  injuries  resulting  from  such  miscarriage. —  Browne. 
Chicago,   etc.,  R.   Co.,  54  Wis.  342. 

So  also  where  plaintiff,  a  married  woman  who  was  pregnant,  was  riding 
with  her  brother  and  when  crossing  a  defective  bridge  in  the  public 
highway  the  team  broke  through  the  bridge  and  plaintiff  jumped  from  the 
wagon  and  assisted  her  brother  in  the  attempt  to  extricate  the  team,  and 
failing  in  this  at  the  request  of  her  brother  she  ran  some  distance  to  ob- 
tain more  assistance,  and  the  result  of  her  fright  and  exertions  was  a 
mit-carriage,  the  damages  sustained  by  the  miscarriage  were  held  the 
proximate  result  of  defendant's  negligence. —  Oliver  v.  Town  of  La 
Valle,  36  Wis.  592.  But  see  Renner  v.  Canfleld,  36  Minn.  90;  SON.  W. 
Rep.  435;  Lehman  v.  Brooklyn  City  R.  Co.,  47  Hun,  355. 

Where  decedent  was  rendered  intoxicated  and  expelled  from  a  saloon 
late  at  night  and  death  resulted  from  the  exposure  to  the  weather,  de- 
fendant was  held  liable. —  Weymire  v.  Wolf,  52  la.  533. 
A  different  rule  has  been  laid  down  by  some  courts. 
In  Pullman  Palace  Car  v.  Barker,  4  Col.  344;  34  Am.  Rep.  89,  the  car 
in  which  plaitfitiff  was  sleeping  was  burned  through  the  negligence  of 
defendant's  servants.  The  burning  was  so  rapid  that  she  had  not  time 
to  properly  clothe  herself  and  left  it  in  her  stocking  feet.  In  doing,  so 
she  was  compelled  to  stand  for  a  short  time  on  the  platform  of  another 
car,  and  caught  a  severe  cold  which  caused  a  cessation  of  her  menses  and 
resulted  in  a  long  period  of  illness.  The  illness  was  held  not  the  prox- 
imate result  of  defendant's  negligence. 

In  Francis  v.  St.  Louis  Transfer  Co.,  (3  Mo.  App.  1),  a  young  unmarried 
lady  took  an  omnibus  and  was  let  down  within  a  mile  of  her  house  and 
had  to  walk  home  on  a  dry  cold  day,  and  contracted  a  cold,  such  as  per- 
manently injured  her  health.    It  was  held  that  the  injury  was  too  remote 


PROXIMATE    CAUSE TENDENCY    OF    DISK  ASK.  13 

defciuhiiit's  negligence  and  how  much  to  another  cuUoC, 
the  damages  may  be  apportioned  (e). 

(e)  Workman  r.  G.  N'.  Uy.  Co.,  32  L.  L.  &  St.  K.   Docks,  L.    R.  9   Cli.   D.   50» 

J.  y.  B.  279  (plulntilf'.s  land  would  have  (effect     of     defendant's    embankment 

been  flooded  to  a  certain  extent,  l)iit  was  Increased    by    act   of   God).    See    jioBt, 

80  to  a  greater  extent   by  defendant's  Damages, 
embankment) ;   Nilro- Phosphate  Co.  v. 

to  warrant  a  recovery  for  the  suffering,  loss  of  employment  and  perma- 
nent Injury  to  the  health  of  plaintiff,  and  that  her  recovery  could  only  be 
for  the  reasonable  cost  of  the  conveyance  home  and  her  expense  in  endeav- 
oring to  avoid  exposure  to  the  cold. 

The  authority  of  these  cases  is  questioned  (Hrown  v.  Chicago,  etc., 
R.  Co.,  5-1  Wis.  352;  Terre  Haute,  etc.,  R.  Co.,  v.  Bucii,  90  Ind.  84(; ; 
40  Am.  Rep.  168),  and  it  is  believed  that  they  are  not  now  the  law. 

But  where  plaintiff,  an  old  colored  man,  partially  paralyzed,  was  put 
off  a  train  at  a  station  at  eight  o'clock  in  the  evening,  and  although  the 
night  was  cold  and  there  was  snow  on  the  ground,  he  undertook  to  walk 
nine  miles  in  the  snow  and  sleet,  it  was  held  that  the  injuries  caused  by 
the  walk,  if  any,  would  not  be  the  proximate  result  of  the  removal  from 
the  cars  unless  after  reasonable  effort  at  the  station  he  failed  to  And 
shelter  or  conveyance,"  nor  then  if  in  the  opinion  of  the  jury  his  failure 
was  due  to  his  negligence  in  not  having  money  to  pay  for  the  accommo- 
dations demanded." —  Louisville,  etc.,  R.  Co.  v.  Fleming,  14  Lea,  128. 
See  Weightman  v.  Louisville,  N.  O.  &  T.  Ry.  Co.,  70  Miss.  5G3;  12  So. 
Rep.  58G. 

Tendency  to  Disease. — Though  the  plaintiff  be  afflicted  with  a  disease 
which  has  a  tendency  to  aggravate  the  injury,  the  defendant's  negligence 
will  still  be  held  to  be  the  proximate  cause,  and  the  defense  that  the 
sufferer  died  from  an  independent  disease  is  not  made  out  unless  it  is 
clearly  shown  that  death  must  have  ensued,  independent  of  the  injury. — 
Beauchamp  v.  Saginaw  MiningCo.,  50  Mich.  103;  45  Am.  Rep.  30.  Thus, 
In  Louisville  &  N.  R,  Co.  v.  Northington  (91  Teun.  6G;  17  S.  W.  Rep. 
880),  the  court  aflirmed  the  charge  of  the  nisi pritis  judge,  which  was  as 
follows:  "  If  you  And  that  the  company  was  negligent,  and  deceased  was 
injured  by  such  negligence  then  did  the  injury  cause  his  death,  or  did  he 
die  of  some  disease?  If  he  died  of  the  injury,  —  and  by  that  is  meant 
the  injury  produced  the  death  or  resulted  in  death  or  so  weakened  the 
powers  of  deceased  as  to  render  him  unable  to  resist  a  disease  of  which 
he  might  otherwise  have  recovered  or  with  which  he  might  have  livoil 
an  indefinite  time,  —  the  plaintiff  should  recover,  *  *  ♦  if  the  death 
was  hastened  or  occurred  sooner  by  reason  of  the  injury  than  it  other- 
wise would,  then  the  injury  was  the  cause  of  the  death."  See  Thomp- 
son r.  Louisville  &  N.  R.  Co.,  91  Ala.  49G;  8  So.  Rep.  406;  Graham  p. 
Burlington  C.  R.  &  N.  Ry.  Co.,  39  Minn.  81;  38  N.  W.  Rep,  813;  Owens 
V.  Kansas  City,  etc.,  Ry.  Co.,  95  Mo.  IGU;  8  S.  W.  Rep.  353,  Schoeu  c. 


44  DEFINITION   AND   DIVISION   OF   SUBJECT. 

[39]  It  is  no  defense  where  an  injury  is  done  in  conse- 
quence of  a  breach  of  duty  by  the  defendant  to  say  that  the 

Dry  Dock,  etc.,  R.  Co.,  9  N.  Y.  S.  Rep.  709;  City  of  Mt.  Carmel  v. 
Howell,  137  111.  91;  27  N.  E.  Rep.  77. 

Where  plaintiff's  intestate  died  of  pneumonia  about  nine  days  after  she 
had  a  rib  broken  and  was  otherwise  negligently  injured  in  accident  on 
defendant's  railroad,  and  it  was  attempted  to  show  that  she  had  incip- 
ient pneumonia  when  the  injury  was  received,  It  was  held,  that:  "  If 
the  plaintiff's  intestate  had  pneumonia  at  the  time  she  was  Injured,  and 
died  of  it,  it  does  not  follow  that  the  injury  was  not  the  real  cause  of 
her  death,  in  this,  — that  it  so  impaired  her  strength  and  vital  force  as 
to  render  the  disease  incurable,  when,  without  the  injury,  it  would  have 
yielded  to  treatment."— Louisville  &  N.  R.  Co.  v.  Jones,  83  Ala.  376 ;  3 
So.  Rep.  902. 

The  aggravation  of  the  injury,  by  reason  of  a  tendency  to  disease,  is  no 
defense.  —  Stewart  v.  Ripon,  38  Wis.  684;  Baltimore  City  Passenger  Ry. 
Co.  V.  Kemp,  61  Md.  74;  McNamara  w.  Village  of  Clintonville,  62  Wis. 
207;  Jackson  v.  St.  Louis,  etc.,  R.  Co.,  87  Mo.  422;  25  Am.  &  Eng.  R. 
Cas.  327;  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Jones,  108  Md.  551. 

In  determining  questions  of  this  character  the  age,  habits,  health,  and 
occupation  of  the  plaintiff  may  be  properly  considered.  Morrow  v.  North 
Birmingham  St.  Ry.  Co.  (Ala."),  13  So.  Rep.  775;  Baker  v.  Pennsylvania 
Co.,  142  Pa.  503;  21  Atl.  Rep.  979;  28  W.  N.  C.  220;  Owens  v.  Kansas  City, 
etc.,  R.  Co.,  95  Mo.  169;  8  S.  W.  Rep.  350,  supra:  East  Line  &  R.  R.  Ry. 
Co.  V.  Rushing,  69  Tex.  306;  6  S.  W.  Rep.  834. 

And  if  the  disease  were  the  proximate  result  of  defendant's  negli- 
gence, it  would  be  an  element  to  be  considered  by  the  jury  in  awarding 
damages  for  the  pain  and  injury  suffered  by  the  plaintiff. —  The  Baltimore 
&  City  Passenger  Ry.  Co.  v.  Kemp,  61  Md.  74,  619;  H.  &  T.  C.  Ry.  Co.  v. 
Leslie,  57  Tex.  83;  Beauchamp  v.  Saginaw  M.  Co.,  50  Mich.  163;  15  N. 
W.  Rep.  65;  Dickson  v.  Hollister,  123  Pa.  St.  421;  16  Atl.  Rep.  485;  23 
W.  N.  C.  128;  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Snider,  117  Ind.  435;  20 
N.  C.  Rep.  285;  Bishop  v.  St.  Paul  City  Ry.  Co.,  48  Minn.  26;  50  N.  W. 
Rep.  927. 

And  though  defendant's  negligence  was  not  the  efficient  cause  of , the 
illness  resulting  in  plaintiff's  death,  yet  if  it  occasioned  pain  and  suffer- 
ing, the  defendant  would  be  liable  for  such  pain  and  suffering.  As 
where  defenda,nt  sold  sulphate  of  zinc  for  epsom  salts  to  be  administered 
to  a  woman  in  an  advanced  stage  of  pregnancy  and  she  suffered  a  mis- 
carriage and  died  by  reason  of  a  severe  attack  of  erysipelas,  the  defend- 
ant was  held  liable  for  the  pain  she  suffered  from  the  administration  of 
the  medicine,  but  not  for  her  death. —  Walton  v.  Booth,  34  La.  An.  913. 

Although  it  has  been  held  that  a  negligent  act  causing  fright  which 
produces  illness  is  the  proximate  cause  of  the  illness  (Purcell  v.  St.  Paul 
City  Ry.  Co.,  48  Minn.  134;  50  N.  W.  Rep.  1034;  Mitchell  v.  Rochester 


PROXIMATE    CAUSE  —  FIRES.  45 

same  injury  would  have  happened  by  reason  of  some  other 
cause  if  the  defendant  had  not  neglected  his  duty  (/),  if 

(/)  Sltro-Phosphate  Co.  v.  St.  K.  Docks,  supra. 

Ry.  Co.,  2b  N.  Y.  S.  Rep.  744;  30  Abb.  N.  C.  362;  4  Misc.  Rep.  575;  Id. 
28  N.  y.  S.  Rep.  113G);  and  it  has  been  held  that,  "The  mind  and  the 
body  operate  reciprocally  on  each  other.  Physical  injury  or  illness 
sometimes  causes  mental  disease,  a  mental  shock  sometimes  causes  in- 
jury or  illness  of  body,  especially  of  the  nervous  system;"  in  the  case  of 
Scheffer  v.  Railroad  Co.,  (105  U.  S.  249),  where  by  reason  of  a  coUij^ion 
of  railway  trains  a  passenger  was  injured,  and  becoming  disordered  in 
mind  and  body,  he  some  eight  months  thereafter  committed  suicide,  it 
was  held  in  a  suit  by  his  personal  representatives  against  the  railway 
company  that  his  own  act  was  the  proximate  cause  of  his  death,  and  they 
were  not  entitled  to  recover.  So,  in  Haile  v.  Texas  &  P.  Ily.  Co,  (60 
Fed.  Rep.  557;  9  C.  C.  A.  Rep.  134),  where  a  passenger  on  one  of  defend- 
ant's trains  during  an  accident,  caused  by  defendant's  nejillgence, 
received  no  immediate  injury  but  was  made  insane  by  the  hardships  and 
excitement  resulting  from  the  accident,  the  court  held  that  the  defendant 
was  not  liable  for  the  Injury  to  the  mind. 

Fires.  —  Illustrations  are  also  to  be  found  in  cases  where  fire  has  been 
negligently  communicated  to  property,  and  by  force  of  the  wind  or  other 
natural  agency,  carried  to  the  property  of  the  plaintiff. 

Sparks  from  a  railroad  locomotive  set  fire  to  the  prairie  adjoining  the 
company's  way  at  a  place  where  the  grass  was  rank  and  dry.  The  wind 
being  high,  the  fire  extended  some  three  miles  before  night,  and  continued 
to  burn  during  the  night  slowly.  The  following  morning  the  wind 
rose  again  and  blew  hard,  as  was  not  unusual  in  that  country,  carrying 
the  fire  some  five  miles  further  to  the  plaintiff's  farm,  where  it  swept 
over  a  Are  line  of  sixteen  feet  of  ploughed  ground  and  destroyed  plain- 
tiff's property.  Plaintiff  was  held  entitled  to  recover.  —  Poeppers  w, 
Missouri,  etc.,  Ry.  Co,,  67  Mo.  715;  29  Am.  R.  518;  7  C.  L.  J.  282, 
See,  also,  Coates  v.  Missouri,  etc.,  Ry,  Co.,  61  Mo.  38;  East  Tenn.  V.  G. 
Ry.  Co.  V.  Hesters,  90  Ga.  11;  15  S.  E.  Rep.  828;  Tyler  v.  Ricamore,  87 
Va.  466;  12  S.  E.  Rep.  799;  Liming  v.  Illinois  C.  R.  Co.,  81  la.  240;  47 
N.  W.  Rep.  66.  But  see  Marvin  v.  Chicago,  etc.,  Ry.  Co.,  79  Wis.  140; 
47N.  W.  Rep.  1123. 

It  is  immaterial  that  the  fire  was  partially  or  apparently  subdued  be- 
fore reaching  plaintiff's  premises.  —Chicago,  St.  L,  &  P,  R.  Co.  v.  "Will- 
iams, 131  Ind,  30;  30  N,  C,  Rep,  696;  Missouri  P.  Ry,  Co,  v.  Cullers,  81 
Tex,  382;  17  S,  W.  Rep,  19.  Thus  defendant  set  Are  to  grain  stubble 
after  ploughing  around  his  field  to  prevent  the  spread  of  the  fire  over  the 
prairie.  The  same  day  he  attempted  to  extinguish  it.  The  evidence 
tended  to  show  that  the  fire  was  not  actually  extinguished,  but  that  it 
continued  to  smoulder  until  two  days  afterwards,  when,  without  other  iu- 


46  DEFINITION    AND   DIVISION   OF   SUBJECT. 

after  all  it  was  the  defendant's  act  which  caused  the 
injury. 

tervening  cause  than  an  ordinary  change  in  the  direction  of  the  wind,  it 
burned  afresh,  and,  running  upon  plaintiff's  land  two  miles  from  where 
the  fire  had  been  set,  it  destroyed  his  property.  It  was  held  that  if  the 
defendant  was  chargeable  with  negligence  in  the  setting  and  care  of  the 
fire,  the  fact  that  it  was  so  long  stayed  in  its  progress  did  not,  as  a  mat- 
ter of  law,  excuse  defendant  from  liability,  and  that  it  could  not  be  held 
as  matter  of  law  that  such  injury  was  too  remote  to  warrant  a  recovery 
against  the  defendant.  —  Krippner  v.  Biebel,  28  Minn.  139.  But  see 
Doggett  V.  Richmond  &  D.  R.  Co.,  78  N.  C.  305. 

Defendants  ran  up  a  harbor,  with  their  steamboat,  so  kept  and  man- 
aged as  to  emit  large  quantities  of  sparks  from  the  smoke  stacks,  by 
means  of  which  a  fire  was  started  in  or  near  a  planing  mill  and  carried 
by  the  wind  to  plaintiff's  house,  3,500  feet  from  the  mill.  The  question 
of  negligence  was  left  to  the  jury  and  they  found  for  plaintiff.  —  Atkin- 
son V.  The  Goodrich  Transp.  Co.,  60  Wis.  141,  following  Kellogg  v.  C.  & 
N.  Ry.  Co.,  26  Wis.  223,  and  Milwaukee,  etc.,  Ry.  Co.  v.  Kellogg,  94  U. 
S.  469. 

See  to  the  same  effect,  Henry  v.  Southern,  etc.,  R.  Co.,  50  Cal.  183, 
and  Adams  «.  Young,  44  Ohio  St.  80;  15  Weekly  Law  Bull.  154,  one  of 
the  latest  reported  cases  upon  the  subject.  Contra,  Read  v.  Nicholas, 
118  N.  Y.  224;  23  N.  E.  Rep.  468. 

An  oil  train  of  defendant  being  cut  in  two,  the  detached  part,  owing 
to  failure  to  set  the  brakes,  ran  down  grade,  struck  a  locomotive  on  the 
track  and  burst  the  oil  tanks.  The  oil  spread  over  the  road-bed,  came  in 
contact  with  fire  shaken  from  the  locomotive,  caught  fire,  ran  down  an 
embankment  into  a  small  stream  to  a  river,  and  was  thence  carried  to 
petitioner's  building,  setting  it  on  fire.  The  defendant  was  held  liable.  — 
Kuhn  V.  Jewett,  32  N.  J.  Eq.  647. 

But  where  an  oil  train  of  defendant  was  thrown  from  the  track  by  a 
recent  laud  slide,  and  the  oil  tanks  bursting,  the  oil  became  ignited,  ran 
down  into  an  adjoining  creek  swollen  by  recent  rains,  and  flowing  down 
the  creek  set  Are  to  and  destroyed  the  plaintiff's  buildings,  three  or  four 
hundred  feet  distant,  the  damage  was  held  too  remote  to  warrant  a 
recovery.  The  court  said  that  this  would  be  so,  even  if  defendants  were 
negligent  (Hoag  v.  Lake  Shore,  etc.,  R.  Co.,  85  Pa.  St.  293;  27  Am. 
Rep.  653) ;  apparently  going  out  of  its  way  to  reiterate  the  doctrine  of 
Pennsylvania  R.  Co.  v.  Kerr  (62  Pa.  St.  353),  and  Ryan  v.  N.  Y.,  etc.,  R. 
Co.  (35  N.  Y.  210),  which  it  was  believed  had  been  so  far  qualified  in 
the  States  in  which  it  was  announced  as  to  be  regarded  no  longer  law 
(Penn.,  etc.,  R.  Co.  v.  Hope,  80  Pa.  St.  373;  Raydurew.  Knight,  2  Weekly 
Notes,  713;  Webbw.  Rome,  etc.,  R.  Co.,  49  N.  Y.  420;  Pollett  v.  Long,  56 
N.  Y.  200;  Wasmer  v.  Delaware,  etc.,  R.  Co.,  80  N.  Y.  212;  36  Am.  Rep. 
608;  Penn.,  etc.,  R.  Co.  v.  Lacey,  89  Pa.  St.  458),  though  it  has  recently 


ACT    OF    OOD.  47 

111  an  action  of  negligence,  as  in  other  actions,  it  is  for 
the  judge  to  say  whether  there  is  any  evidence  of  neHi- 

been  adopted  in  Indiana. —  The  Pennsylvania  Co.  v.  Whltlock,  09  Ind. 
16.  See  Behllng:  v.  S.  W.  Pa.  P.  L. ;  160  Pa.  St.  369;  28  Atl.  Rep.  777;  34 
W.  N.  C.  209. 

In  Iloag  V.  Lake  Shore,  etc.,  II.  Co.,  there  was  no  evidence  of  negli- 
gence, and  the  statement  of  the  court  was  obiter,  and  in  Lehigh  Valley  K. 
Co.  V.  McKeen  (90  Pa.  St.  122;  36  Am.  Rep.  644),  there  was  some  evi- 
dence of  another  origin,  and  the  question  whether  defendant's  negli- 
gence was  the  proximate  cause  of  the  injury  was  left  to  the  jury. 

If  lieiper  v.  Nicholas  (31  Hun,  491),  may  be  taken  to  be  the  law  of  New 
York  State,  it  would  appear  that  the  doctrine  of  Ryan  v.  N.  Y.,  etc.,  R. 
Co.,  has  not  been  repudiated.  In  that  case,  sparks  and  burning  cinders 
escaped,  through  the  defendant's  negligence,  from  the  top  of  the  smoke- 
stack in  defendant's  factory  and  set  fire  to  the  roof  of  an  old  unoccupied 
building  situated  about  two  hundred  and  eighty  feet  in  a  southwesterly 
direction,  and  on  the  side  of  the  street  with  the  smoke-stack.  Owing  to 
a  lack  of  proper  appliances,  and  to  the  fact  that  the  doors  of  the  building 
were  locked,  the  roof  of  the  building  could  not  be  reached  until  the  Are 
had  spread  across  the  street  to  an  old  barn  some  one  hundred  and  ten  feet 
long,  and  some  fifty  feet  distant.  From  this  barn  it  passed  across  the 
street  to  a  saloon  and  other  buildings,  and  thence  to  buildings  owned  by 
the  plaintiff,  which  stood  near  the  smoke-stack  from  which  the  sparks 
were  emitted.  It  was  held  that  defendant's  negligence  was  not  the  im- 
mediate and  proximate  cause  of  the  burning  of  plaintiff's  building,  and 
that  he  was  not  liable  for  the  damages  occasioned  thereby. 

Act  of  God. —  Where  goods  to  be  transported  by  common  carriers 
were  delayed  through  their  negligence,  and  afterwards  when  on  their 
way  were  destroyed  by  an  extraordinary  flood,  and  there  was  evidence 
that  the  goods  would  not  have  been  injured  but  for  the  delay,  the  negli- 
gence was  held  not  to  be  the  proximate  cause  of  the  loss. —  Morrison  v. 
Davis,  20  Pa.  St.  171. 

See  to  the  same  effect. —  Railroad  Co.  v.  Reeves,  10  Wall.  176;  Denny 
w.  N.  Y.  Cent.  R.  Co.,  13  Gray,  481,  and  Hoadley  v.  Nor.  Trausp.  Co., 
115  Mass.  364;  Richmond  &  D.  R.  Co.  v.  White,  88  Ga.  885;  15  S.  E. 
Rep.  802. 

Where  defendant  contracted  to  tow  plaintiff's  barge  over  Lake  Michi- 
gan, and  through  his  neglect  the  voyage  was  delayed,  and  after  it  was 
resumed  and  being  prosecuted  a  storm  was  encountered  and  the  barge 
was  lost,  it  was  held  that  by  the  mere  fact  of  delay  the  defendant  did  not 
become  responsible  for  the  loss,  although  the  delay  was  unreasonable 
and  unnecessary,  and  although,  as  the  event  proved,  the  barge  but  for 
the  delay  would  probably  have  been  safely  towed  to  its  place  of  destina- 
tion.—Daniels  J..  Ballentine,  23  Ohio  St.  532;  13  Am.  Rep.  264.  See, 
also,  McClary  v.  Sioux  City,  etc.,  R.  Co.,  3  Neb.  44;   19  Am.  Rep.  631; 


48  DEFINITION    AND   DIVISION   OF   SUBJECT. 

gence  at  all  to  go  to  the  jury,  and  if  not,  to  direct  a  non- 
suit (g)  ;  aud  it  is  now  well  settled  in  England  that  a  mere 

(fir)  Daniel  v.  Met,  Ry.  Co.,  ante,  p.  2 ;  Davey  v.  L.  &  S.  W.  Ky.,  12  Q.  B.  D.  70. 

contra,  Condict  v.  Grand  Trunk  E.  Co.,  54  N.  Y.  500,  where  the  loss 
was  caused  by  fire,  and  Michaels  v.  N.  Y.  Cent.  R.  Co.,  30  N.  Y.  564. 

Where  a  building  weakened  by  the  vibration  of  machinery  in  it  was  in 
an  unsafe  condition  when  a  violent  storm  demolished  it  and  other  build- 
ings near  by ;  it  was  held,  that  the  storm  was  the  immediate  cause  of  the 
falling  of  the  building  and  that  the  burden  was  upon-the  plaintiff  to  prove 
the  unfitness  of  the  structure.—  Turner  v.  Haar  (Mo.),  21  S.  W.  Rep.  737. 

Where  plaintiff  had  deposited  a  quantity  of  wood  at  one  end  of  a 
bridge  which  he  intended  to  take  over  the  bridge  into  the  city,  but  was 
delayed  by  the  neglect  of  the  city  to  repair  it,  and  the  wood  was  subse- 
quently carried  away  by  a  flood,  it  was  held  that  he  could  not  recover. — 
Dubuque  Wood  and  Coal  Ass.  v.  Dubuque,  30  la.  176.  ^ 

But  if  the  property  had  been  exposed  to  the  flood  by  a  wrongful  act 
concurrent  in  point  of  time  the  defendant  would  have  been  responsible. — 
Cooley  on  Torts,  2d  ed.,  pp.  78,  79 ;  Scott  v.  Hunter,  46  Pa.  St.  192.  Or  if 
the  flood  had  occurred  In  consequence  of  a  wrongful  act. —  Dickinson  v. 
Boyle,  17  Pick.  78. 

One  who  maintains  an  artificial  embankment  is  not  liable  for  injury  to 
neighboring  property  by  overflowing  water  during  a  storm,  unless  the 
embankment  was  the  immediate  cause  of  the  overflow. —  Haney  v.  City 
of  Kansas,  94  Mo.  334;  7  S.  W.  Rep.  417;  Smith  y.  Sabine  &  E.  T.  Ry. 
Co.,  76  Tex.  63;  13  S.  W.  Rep.  165;  Sowles  v.  Moore,  65  Vt.  322;  26  Atl. 
Rep.  630. 

Where  the  plaintiff  to  avoid  a  train  when  started  suddenly  and  with- 
out a  signal,  stepped  near  to  a  sand  bank  which  fell  upon  him,  knocking 
him  under  the  car  wheels,  where  he  was  run  over  and  injured,  it  was 
held  that  the  proximate  cause  of  his  injury  was  the  falling  of  the  sand 
bank,  and  that  he  could  not  recover.  —  Handelun  v.  Burlington,  C.  R. 
&  N.  Ry.  Co.,  72  la.  709 ;  32  N.  W.  Rep.  4. 

And  where  an  unforeseen  cause  combines  with  defendant's  unlawful 
act  in  producing  the  injury,  the  defendant  will  be  held  liable. 

As  where  defendant's  sign  hanging  over  a  city  street,  in  violation  of 
an  ordinance,  was  blown  down  by  the  wind  in  an  extraordinary  storm, 
and  in  its  fall  a  bolt,  which  was  part  of  its  fastenings,  struck  and  broke 
plaintiff's  window  defendant  was  held  liable. —  Salisbury  v.  Hirchenrode, 
106  Mass.  458,  citing  Dickinson  v.  Boyle,  17  Pick.  78;  and  Woodward  v. 
Aborn,  35  Me.  271. 

In  Rodgers  v.  R.  R.  Co.,  67  Cal.  607;  8  W.  C.  Rep.  20;  1  South.  Law 
Times,  230,  the  question  whether  defendant  was  guilty  of  negligence  in 
the  construction  and  maintenance  of  a  bridge,  by  the  fall  of  which  a  rail- 
road train  was  preciptated  into  a  chasm,  or  whether  the  accident  was 


QUESTIONS  FOR  THE  COURT  AND  JURY.        49 

[40]  sciutillii  of  evidence  is  not  sufficient  to  go  to  the 
jury  (// )  ;  though  in  America  it  would  seem  that  the  question 
of  negligence  is  always  a  question  for  the  jury  (/).  Upon 
any  given  state  of  facts  it  is  for  the  judge  to  say  whether 
negligence  ca?i  legitimately  be  inferred,  and  the  jury  whether 
it  ought  to  be  inferred  (^').  Where,  on  the  other  hand, 
there  is  conflicting  evidence  on  a  question  of  fact,  or  there 
are  two  different  and  yet  reasonable  views  which  may  be 
taken,  the  judge,  whatever  may  be  his  opinion  as  to  the 
value  of  the  evidence,  must  leave  it  to  the  jury  (if).  The 
duty  of  the  judge  is  to  declare  negatively  that  there  is  no 
evidence  to  go  to  the  jury  but  not  affirmatively  that  a  cer- 
tain issue  is  proved  (w^).  The  judges  have  sometimes  been 
very  astute  to  discover  that  there  is  no  evidence  to  go  to 

(A)  Gee  v.  Met.  Ry.  Co.,  L.  R.  8  Q.  B.  (*)  Met.  Ry.  Oo.  v.  Jackson,  supra. 

161 ;  42  L.  J.  Q.  B.  105;  Met.  Ry.    Co.  v.  (I)  D.  W.  &  W.  Ry.  Co.  v.  Slattery,  L. 

Jackson,  47  L.  J.  H.  L.  303;  L.  R.  3  App.  R.  3  App.  Cas.  1155. 

Cas.  103.  (m)  Per  Lord  Penzance,  ib.  at  p.  1181. 

(•)  Shearman  on  Negligence,  p.  18. 

due  to  an  enormous  downfall  of  water  caused  by  what  is  familiarly 
known  as  a  cloud-burst,  and  the  court  said  if  the  negligence  of  defend- 
ant combined  with  the  act  of  God  in  producing  the  injury,  defendant  was 
liable. 

So,  where  refuse  from  a  coal  mine  upon  being  deposited  in  a  stream, 
was  carried  by  an  extraordinary  flood  and  loaded  upon  plaintiff's  land,  it 
was  held  that  a  recovery  could  be  had  for  the  damage. —  Elder  v.  Lykens 
Val.  Coal  Co.,  157  Pa.  St.  490;  275  Atl.  Rep.  546;  33  W.  N.  C.  333. 

Law  and  Fact.  —  The  statement  of  the  text  that  negligence  is  always 
a  question  of  fact  in  this  country  is  too  broad. 

Generally  negligence  is  a  question  of  mixed  law  and  fact.  It  is  for 
the  jury  to  find  the  facts,  and  the  court  to  pass  on  their  effect. 

When  the  facts  are  disputed,  or  the  conclusion  to  be  drawn  there- 
from Indisputable,  the  question  of  negligence  is  for  the  jury.  When  the 
facts  are  undisputed,  aud  the  conclusion  to  be  drawn  therefrom  indis- 
putable, the  question  of  negligence  is  for  the  court.  —  2  Thomp.  Neg.,  p. 
1235;  Cooley  on  Torts,  2d  ed.,  p.  754;  Alabama  G.  S.  R.  Co.  v.  Arnold, 
80  Ala.  GOO;  2  So.  Rep.  337;  Carter  v.  Chambers,  79  Ala.  223;  St.  Louis, 
I.  M.  &  S.  Ry.  Co.  V.  White,  48  Ark.  495;  4  S.  W.  Rep.  52;  Brown  v. 
Central  P.  R.  Co.,  72  Cal.  623;  12  Pac.  Rep.  612;  14  Pac.  Rep,  138; 
Denver  T.  &  G.  R.  Co.  v.  Robbins,  2  Colo.  App.  313;  30  Pac.  Rep.  261; 
Georgia  R.  &  B.  Co.  v.  Mayo,  92  Ga.  223;  17  S.  E.  Rep    1000;  Wright  v. 

4 


50  DEFINITION   AND    DIVISION    OF   SUBJECT. 

the  jury  when  it  would  seem  there  is  some  apprehension  of 
prejudice,  as  in  the  case  of  Ellis  v.  Gt.  W.  Ry.  Co.,  L.  R. 

Chicago  &  N.  "W.  Ry.  Co.,  27  111.  App.  200;  Grimes  v.  Louisville,  etc., 
Ry.  Co.,  3  Ind.  App.  573;  30  N.  E.  Rep.  200;  Nelson  v.  Chicago,  eic,  Ry. 
Co.,  73  la.  576;  35  N.  "W.  Rep.  611;  Bowes  v.  City  of  Boston,  155  Mass. 
344;  29  N.  E.  Rep.  633;  McGuerty  v.  Hale,  161  Mass.  51;  36  N.  E.  Rep. 
682;  Detroit,  etc.,  R.  Co.  v.  Van  Steinberg,  17  Mich.  99;  Craft  v.  Parker, 
Webb  &  Co.,  96  Mich.  245;  55  N.  W.  Rep.  812;  Sellick  v.  Lake  Shore  & 
M.  S.  Ry.  Co.,  93  Mich.  375;  53  N.  W.  Rep.  556;  Chaddock  v.  Plummer, 
88  Mich.  225;  50  N.  W.  Rep.  135;  Read  v.  Nicholas,  118  N.  Y.  224;  23  N. 
E.  Rep.  469;  Rhing  v.  Broadway  &  S.  A.  Ry.  Co.,  53  Hun,  641  ;  Lynch  v. 
Brooklyn  City  R.  Co.,  5  N.  Y.  S.  Rep.  311;  South  Side  P.  Ry.  Co.  v. 
Trick,  117  Pa.  St.  390;  11  Atl.  Rep.  627;  Haverly  v.  State  Line  &  S.  R. 
Co.,  135  Pa.  St.  50;  19  Atl.  Rep.  1018;  26  W.  N.  C.  321;  Ewing  v.  North 
Versailles  Tp.,  146  Pa.  St.  309;  23  Atl.  Rep.  338;  West  Mahaney  v. 
Watson,  112  Pa.  St.  574;  56  Am.  Rep.  336;  Yeam  v.  Williams,  15  R.  I. 
20;  Kreanziger  v.  Chicago  &  N.  W.  Ry.  Co.,  73  Wis.  158;  40  N.  W.  Rep. 
657;  Harris  ?J.  Cameron,  (Wisconsin),  51  N.  W.  Rep.  437;  Schrothv.  City 
of  Prescott,  68  Wis.  678;  32  N.  W.  Rep.  621;  Pike  v.  Grand  Trunk  Ry. 
Co.,  39  Fed.  Rep.  225;  Union  Pac.  Ry.  Co.  v.  Callahan,  56  Fed.  Rep. 
988;  6  C.  C.  A.  205;  Northern  Pac.  Ry.  Co.  v.  Lewis,  51  Fed.  Rep.  658; 
2  C.  C.  A.  446;  7  U.  S.  App.  254;  Andrist  v.  Union  P.  Ry.  Co.,  30  Fed. 
Rep.  345;  Railroad  Co.  v.  Stout,  17  Wall.  657. 

It  has  been  said  that  it  must  eventually  be  held  in  this  country  that  a 
mere  scintilla  of  evidence  is  not  enough  to  go  to  the  jury  (Shearman  &. 
Redfield,  §  11),  and  that  it  is  a  rule  which  ought  to  prevail  universally.— 
2  Thomp.  Neg.,  p.  1237. 

But  it  will  be  found  that  the  cases  in  which  the  question  of  negligence 
Is  declared  to  be  one  of  law  are  comparatively  rare. 

Illustrations. 

Crossing  Railioad  Tracks. —  Many  of  the  cases  hold  that  a  failure  to 
look  or  listen  where  one  could  have  seen  or  heard  an  approaching  train 
before  crossing  a  railroad  track,  is  such  negligence  as  will  justify  the 
court  in  withdrawing  the  case  from  the  jury,  or  instructing  the  jury  to 
find  for  the  defendant,  or  granting  a  new  trial. —  Reading,  etc.,  R.  Co.  v, 
Ritchie,  102  Pa.  St.  425;  Pennsylvania  R.  Co.  v.  Beale,  73  Pa.  St.  504; 
Abbett  V.  Chicago,  etc.,  R.  Co.,  30  Minn.  482;  Schaefert  v.  The  Chicago, 
etc.,  Ry.  Co.,  62  la.  624;  Schofleld  v.  Chicago,  etc.,  Ry.  Co.,  114  U.  S. 
615;  Connelly  v.  N.  Y.  Cent.,  etc.,  R.  Co.,  88  N.  Y.  346;  Allyn  v.  Boston 
&  Albany  R.  Co.,  105  Mass.  77;  C.  C.  C.  &  I.  Ry.  Co.  v.  Elliott,  28  Ohio 
St.  340;  Railroad  Co.  v.  Houston,  95  U.  S.  697;  Ormsbee  v.  Boston,  etc., 
R.  Co.,  14  R.  1. 102  (deaf  mute) ;  Slater  v.  Utica,  etc.,  R.  Co.,  75  N.  Y.  273 
(driving  load  of  logs  on  cold  day  with  covered  ears) ;  Belief ontaine  R. 
Co.  V.  Hunter,  33  Ind.  335;  Rockford,  etc.,  R.  Co.  v.  Byam,  80  111.  528; 
Butterfield  v.  Western  R.  Co.,  10  Allen,  532  (crossing  when  a  storm  was 


QUESTIONS  FOR  THE  COURT  AND  JURY.        51 

[41]  9  C.  p.  5G1  ;  43  L.  J.  C.  P.  304,  where  four  ju(l<rcs 
thought  there  was  nothing  for  the  jury,  where  the  plaintiff 

prevailing,  and  no  signal  was  jeiven) ;  Thomas  v.  Chicago,  etc.,  Ry.  Co., 
8(i  Mich.  4%;  49  N.  W.  Rep.  547;  Urias  v.  Pennsylvania  R.  Co.,  152  Pu. 
St.  326;  25  St.  Rep.  666;  31  W.  N.  C.  353;  Herlish  v.  Louisville,  etc.,  R. 
Co.,  44  La.  Ann.  280;  11  So.  Rep.  628:  Grostick  r.  Detroit,  etc.,  R.  Co., 
90  Mich.  597;  51  N.  W.  Rep.  667;  Hinckle  v.  Richmond  &  D.  R.  Co.,  109 
N.  C.  472;  13  S.  E.  Rep.  884;  Greenwood  v.  Philadelphia,  W.  &  B.  R. 
Co.,  124  Pa.  St.  572;  17  Atl.  Rep.  188;  23  W.  N.  C.  425.  So,  it  is  negli- 
gence per  se  to  drive  over  a  railroad  crossing  in  view  of  an  approaching 
train.— The  Maryland  R.  Co.  v.  Neuber,  62  Md.  391;  State  v.  Maine 
Central  R.  Co.,  76  Me.  357;  Grows  v.  Maine  Central  R.  Co.,  69  Me.  412; 
T.  W.  &  W.  R.  Co.  V.  Jones,  76  111.  312. 

To  this  rule  there  are,  however,  numerous  exceptions;  and,  as  above 
stated,  where  there  is  any  dispute  as  to  the  fact  the  issue  is  for  the  jury.— 
Nasler  v.  Chicago,  etc.,  Ry.  Co.,  23  la.  268;  34  N.  W.  Rep.  850;  Jennings 
V.  St.  Louis,  etc.,  Ry.  Co.,  112  Mo.  268;  20  S.  W.  Rep.  490;  Cahill  v. 
Cincinnati,  etc.,  Ry.  Co.,  92  Ky.  345;  18  S.  W.  Rep.  2;  Toledo,  etc.,  R. 
Co.  V.  Cline,  135  111.  41;  25  N.  E.  Rep.  846;  Terre  Haute  &  P.  R.  Co.  v. 
Barr,  31  III.  App.  57;  Manley  v.  Boston  &  M.  R.  Co.,  159  Mass.  493;  34  N. 
E.  951;  Chicago,  M.  &  St.  P.  Ry.  v.  Wilson,  133  111.  55;  24  N.  E.  Rep.  555; 
York  V.  Maine  C.  R.  Co.,  84  Me.  117;  24  Atl.  Rep.  790;  Retan  v.  Lake 
Shore  &  M.  S.  R.  Co.,  94  Mich.  146;  53  N.  W.  Rep.  1094;  Siegel  v.  Mil- 
waukee  &  N.  R.  Co.,  79  Wis.  404;  48  N.  W.  Rep.  488;  Chicago,  St.  L.  & 
P.  R.  Co.  V.  Hutchinson,  120  111.  587;  11  N.  E.  Rep.  855;  Kellogg  v.  N.  Y. 
Cent.,  etc.,  R.  Co.,  79  N.  Y.  464;  Stackus  v.  N.  Y.  Cent.,  etc.,  R.  Co.,  79 
N.  Y.  72;  H.  &  T.  C.  Ry.  Co.  v.  Wilson,  60  Tex.  142;  contra,  Henze  v.  St. 
Louis,  etc.,  Ry.  Co.,  71  Mo.  636;  Turner  v.  The  Hannibal,  etc.,  R.  Co., 
74  Mo.  602;  Pennsylvania  R.  Co.  u.  Beale,  73  Pa.  St,  504;  Reading,  etc., 
R.  Co.  V.  Ritchie,  102  Pa.  St.  425. 

Walking  on  track. —  This  has  been  held  negligence  per  se. —  Moore  v. 
Pennsylvania  R.  Co.,  99  Pa.  St.  301;  Yarnall  v.  St.  Louis,  etc.,  R.  Co.,  75 
Mo.  575;  Central  R.  Co.  v.  Brinson,  70  Ga.  207;  Bresnahan  v.  Cent.  R. 
Co.,  49  Mich.  410;  McClaren  v.  Ind.,  etc.,  R.  Co.,  83  Ind.  319;  Tennen- 
brock  V.  South  Pac,  etc.,  R.  Co.,  59  Cal.  269;  Herring  v.  Wilmington, 
etc.,  R.  Co.,  10  Ired.  L.  402;  Harty  v.  Central  Ry.  Co.,  42  N.  Y.  468; 
Manly  v.  Wilmington,  etc.,  R.  Co.,  74  N.  C.  655;  Coggswell  v.  Oregon, 
etc.,  R.  Co.,  6  Ore.  417;  Adams  v.  New  York,  L.  E.  &  W.  R.  Co.,  66  Hun, 
634;  21  N.  Y.  S.  Rep.  681;  Savannah  &  W.  R.  Co.  v.  Madors,  95  Ala.  137; 
10  So.  Rep.  141;  Richards  v.  Chicago,  St.  P.  &  K.  C.  Ry.  Co.,  81  la.  426; 
47  N.  W.  Rep.  63;  Donnelly  v.  Brooklyn  City  R.  Co.,  109  N.  Y.  16;  15  N. 
E.  Rep.  733;  contra,  Alabama  G.  S.  R.  Co.  v.  Chapman,  83  Ala.  453;  2  So. 
Rep.  738. 

As  also  stepping  in  front  of  a  locomotive. —  Carroll  v.  Penn.  R.  Co.,  2 
Pa.  St.  159;  Wendell  v.  N.  Y.  Cent.,  etc.,  R.  Co.,  91  N.  Y.  420. 


52  DEFINITION   AND   DIVISION   OF   SUBJECT. 

swore    [42]    that  lie  heard  no  whistle  and  heard  no  porter 
call  out,  because  the  fact  of  his  not  hearing  was  only  nega- 

And  lying  on  a  railroad  track. —  H.  &  T.  C.  Ry.  Co.  v.  Sympkins,  54 
Tex.  615. 

Or  near  the  edge  of  railroad  cross  ties. —  The  Baltimore,  etc.,  R.  Co. 
V.  State,  54  Md.  648. 

Or  sleeping  near  the  track. —  Denman  v.  St.  Paul,  etc.,  R.  Co.,  26 
Minn.  357.  Gregory  v.  Southern  Pac.  Ry.  Co.,  2  Tex.  Cir.  App.  279;  21 
S.  W.  Rep.  417;  Smith  v.  Fordyce  (Tex.),  18  S.  W.  Rep.  663. 

Crawling  under  Train —  It  has  been  held  negligence  per  se  to  crawl 
under  a  train  slowly  moving  or  standing  still. —  Lewis  v.  Hannibal,  etc., 
R.  Co.,  67  Mo.  671;  Lewis  v.  B.  &  0.  R.  Co.,  38  Md.  588;  C.  B.  &  Q.  R. 
Co.  V.  Dewey,  26  III.  255;  Osteray  v.  Pac.  R.  Co.,  64  Mo.  421;  Central, 
etc.,  R.  Co.  V.  Dixon,  42  Ga.  327;  Chicago,  etc.,  R.  Co.  v.  Coss,  73  111. 
394. 

Or  to  crawl  between  cars  standing  still. —  Memphis  &  Charleston  R. 
Co.  V.  Copeland,  61  Ala.  376. 

Riding  on  Platform  of  Car. —  Riding  on  a  car  platform  against  the 
rule  of  the  company,  the  warning  of  the  driver,  and  without  reasonable 
excuse,  has  been  held  negligence  per  se. —  Wills  v.  Lynn  &  Boston  R. 
Co.,  129  Mass.  351 ;  McCauley  v.  Tennessee  C,  I.  &  R.  Co.,  93  Ala.  356; 
9  So.  Rep.  611,  following  Railroad  Co.  v.  Hawk,  72  Ala.  116. 

Or,  even  with  the  consent  of  the  conductor  or  brakeman. —  Hickey  v. 
Boston,  etc.,  R.  Co.,  14  Allen,  429;  Goodwin  v.  Boston  &  M.  R.,  84 
Me.  203;  24  Atl.  Rep.  816. 

But  not  where  the  car  is  crowded  and  room  is  not  to  be  had  within. — 
The  German  Pass.  Ry.  Co.  v.  Walling,  97  Pa.  St.  55;  37  Am.  R.  711; 
Nolan  V.  Brooklyn  City  R.  Co.,  87  N.  Y.  63;  Werle  v.  Long  Island  R.  Co  , 
96  N.  Y.  650;  Thirteenth,  etc.,  St.  Pass.  Ry.  Co.  v.  Bondron,  92  Pa.  St. 
475;  37  Am.  R.  707;  Bruno  v.  Brooklyn  City  R.  Co.,  25  N.  Y.  S.  Rep.  507; 
5  Misc.  Rep.  327;  Marion  St.  R.  Co.  v.  Shaffer  (9  Ind.  App.  486),  36  N. 
E.  Rep.  801;  International  &  G.  N.  R.  Co.  v.  Welsh  (Tex.  Civ.  App.),  24 
S.  W.  Rep.  854;  Muldoon  v.  Seattle  City  Ry.  Co.,  7  Wash.  528;  35  Pac. 
Rep.  422;  Morris  v.  Eighth  Av.  R.  Co.,  68  Hun,  39;  22  N.  Y.  S.  Rep. 
666;  Sutherland  v.  Standard  Life  and  Ace.  Ins.  Co.,  87  la.  505;  54  N.  W. 
Rep.  453. 

Or  even  where  notice  is  posted  forbidding  it. —  Goodrich  v.  Pennsyl- 
vania, etc.,  R.  Co.,  29  Hun,  50. 

It  has  been  held  not  negligence  per  se  to  ride  on  the  platform  of  a 
street  car  though  there  is  room  within.  —  Upham  v.  Detroit  City  Ry. 
Co.,  85  Mich.  12;  48  N.  W.  Rep.  199;  Hourney  v.  Brooklyn  City  R.  Co., 
7  N.  Y.  S.  Rep.  602. 

Arm  projecting  from  Car  Window.— In  some  cases  it  has  been  held 
negligence  werse  for  a  passenger  to  project  his  arm  from  a  car  window.— 
Dun    V.  Seaboard,    etc.,   R.  Co.,  78    Va.   645;  Indianapolis  R.   Co.  v. 


QUESTIONS    FOR   THE    COUliT   AND   JURY.  53 

tivG  evidence  ;  [43]  two  judges  however  dissented,  and 
the  judge  at  the  trial  had  directed  the  jury  that  there  was 
evidence. 


Ratherford,  29  Ind,  82;  Louisville,  etc.,  R.  Co.  v.  Sickings,  5  Bush,  1; 
Pittsburgh,  etc.,  R.  Co.  w.  Andrews,  39  Md.  329 ;  Todd  w.  Old  Colony, 
etc.,  R.  Co.,  3  Allen,  18;  7  Allen,  207;  Pittsburgh,  etc.,  R.  Co.  v.  Mc- 
Clurg,  56  Pa.  St.  294;  Winters  v.  Hannibal,  etc.,  R.  Co.,  39  Mo.  468;  Hol- 
brook  t>.  Utlca,  etc.,  R.  Co.,  12  N.  Y.  236;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Danshank,  6  Tex.  Civ.  App.  385;  25  S.  W.  Rep.  295;  Richmond  &  D.  B. 
Co.  V.  Scott,  88  Va.  958;  14  S.  E.  Rep.  7G3;  Butler  v.  Pittsburgh  &  B.  St. 
Ry.  Co.,  139  Pa.  195;  21  Atl.  Rep.  500;  Georgia  P.  Ry.  v.  Underwood,  90 
Ala.  49;  8  So.  Rep.  116;  Favre  v.  Louisville  &  N.  R.  Co.,  91  Ky.  541; 
16  S.  "W.  Rep.  370.  In  others  that  the  question  of  negligence  should  be 
submited  to  the  jury. —  Summers  v.  Crescent  City  R.  Co.,  34  La.  An. 
139;  Dahlberg  v.  Minneapolis  St.  Ry.  Co.,  32  Minn.  404;  Chicago,  etc., 
R.  Co.  V.  Pondrom,  51  111.  333;  Spencer  v.  Milwaukee,  etc.,  R.  Co.,  17 
Wis.  487;  Winters  v.  Hannibal  R.  Co.,  39  Mo.  468;  Barton  v.  St.  Louis, 
etc.,  R.  Co.,  52  Mo.  253.  New  Orleans  &  C.  R.  Co.  v.  Schneider,  60 
Fed.  Rep.  210;  8  C.  C.  A.  571.  Where  a  person  sat  with  his  arm  resting 
on  a  window  sill  and  wholly  within  the  car,  and  his  arm  was  thrown  out 
and  broken  by  reason  of  a  collission,  the  question  whether  he  was  guilty 
of  contributory  negligence  was  held  properly  left  to  the  jury. —  German 
Pass.  Ry.  Co.  v.  Brophy,  102  Pa.  St.  38. 

It  is  legal  negligence  to  protrude  the  arm  from  the  window  of  a  fast- 
going  passenger  coach,  but  not  to  merely  rest  the  arm  upon  the  window 
sill.— Carrie  v.  West  Virginia,  C.  &  P.  Ry.  Co.,  35  W.  Va.  389;  14  S. 
E.  Rep. 12. 

Boarding  moving  Train.  —  Boarding  a  moving  train  has  been  held 
negligence  per  se.  —Perry  v.  The  Central  R.  Co.,  66  Ga.  746;  Dowell  v. 
Vicksburg,  61  Miss.  519.  See  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Koehler, 
47  HI.  App.  147;  Moylan  v.  Second  Av.  R.  Co.,  128  N.  Y.  583;  27  N.  E. 
Rep. 977. 

But  other  considerations  may  affect  the  question  of  negligence,  and 
render  it  one  of  fact,  as  whether  the  train  stopped  long  enough  to  allow 
passengers  to  get  on.  — Swiget  v.  Hannibal,  etc.,  R.  Co.,  75  Mo.  476. 
See  Baltimore  &  O.  R.  Co.  v.  Kane,  69  Md.  11;  13  Atl. Rep.  387;  Stager 
V.  Ridge  Av.  P.  Ry.  Co.,  119  Pa.  St.  70;  12  Atl.  Rep.  821. 

Or  where  an  intending  passenger  attempted  to  board  amoving  train  by 
invitation  of  a  brakeman.  — Western,  etc.,  R.  Co.  v  Wilson,  71  Ga.  22. 

Or  where  a  boy  jumped  on  an  engine  by  permission  of  the  engineer. — 
Vickers  v.  The  Atlantic,  etc.,  R.  Co.,  64  Ga.  306. 

Where  the  train  is  moving  no  faster  than  a  man  ordinarily  walks  it  is  not 
negligence  per  se  for  a  young,  active,  and  unincumbered  passenger,  on 
the  Invitation  of  the  conductor,  to  attempt  to  get  on ;  but  it  would  be 


54  DEFINITION   AND    DIVISION   OF   SUBJECT. 

[44]  Having  now,  as  it  is  hoped,  explained  the  defini- 
tion of  negligence,  I  proceed  to  consider  the  three  divisions 
of  the  subject ;  — 

1.  Neglect  of  duties  requiring  ordinary  care. 

negligence  per  se    provided  the  train  were  moving  at  the  rate  of  six  or 
eight  miles  an  hour.— Murphy  v.  St.  Louis,  etc.,  K.  Co.,  43  Mo.  App.  342. 

Alighting^  from  moving  Train. —  Alighting  from  a  moving  train  is 
negligence  per  se.— Dougherty  v.  K.  Co.,  86  111.  467;  R.  Co.  v.  Aspell, 
23  Pa.  St.  147;  Jeffersonville,  etc.,  R.  Co.  v.  Hendricks'  Admr.,  26  Ind. 
228;  Morrison  v.  Erie  R.  Co.,  56  N.  Y.  302 ;  Burroughs  o.  Erie  R.  Co.,  63 
N.  Y.  506;  Damont  v.  New  Orleans,  etc.,  R.  Co.,  9  La.  An.  441;  Gravett 
V.  Manchester,  etc.,  R.  Co.,  16  Gray,  501;  Kilpatrick  v.  Pennsylvania  R. 
Co.,  140  Pa.  St.  502;  21  Atl.  Rep.  408;  27  W.  N.  C.  484;  McGaren  v.  At- 
lantic &  W.  R.  Co.,  85  Ga.  504;  11  S.  E.  Rep.  840;  Hughlett  v.  Louisville 
&  N.  R.  Co.  (Ky.),  22  S.  W.  Rep.  551  (train  moving  eight  miles  an  hour"). 

But  this  rule  is  not  without  many  exceptions,  where  attending  circum- 
stances are  considered. —  Duncan  v.  Wyatt  Park  Ry.  Co.,  48  Mo.  App. 
659;  Richmond  v.  Quincy,  O.  &  K.  C.  Ry.  Co.,  49  Mo.  App.  104;  Louis- 
ville, E.  &  St.  L.  C.  R.  Co.  V.  Bean,  9  Ind.  App.  240;  36  N.  E.  Rep.  443; 
Louisville  &  N.  R.  Co.  v.  Crank,  119  Ind.  542;  21  N.  E.  Rep.  31. 

As  Wi.eu  ihe  train  was  moving  very  slowly. —  Fleck  v.  Fortune,  etc., 
R.  Co.,  10  Mo.  App.  252;  Clotworthy  v.  The  Hannibal,  etc.,  R  Co.,  80 
Mo.  220;  McSloop  v.  Richmond  &  D.  R.  Co.,  59  Fed.  Rep.  431. 

Where  the  passenger  may  not  have  had  time  to  alight. —  The  Cum- 
berland Valley  R.  Co.  v.  Maugans,  61  Md.  53;  Wardle  v.  The  New 
Orleans,  etc.,  R.  Co.,  35  La.  Au.  202  (street  car  passenger). 

Where  the  train  checked  its  speed  at  a  station  instead  of  stopping  as 
required  by  law.—  G.  H.  &  S.  A.  Ry.  Co.  v.  Smith,  59  Tex.  406-  Bucher  v. 
N.  Y.  Cent.,  etc.,  R.  Co.,  98  N.  Y.  128. 

Where  the  train  overshot  the  station.—  Terre  Haute,  etc.,  R.  Co.  v. 
Buck,  96  Ind.  346 ;  Carr  v.  Eel  River  &  E.  R.  Co.,  98  Cal.  366;  33  Pac.  Rep. 
213. 

In  Lake  Shore,  etc.,  R.  Co.  v.  Bangs,  47  Mich.  470,  it  was  held  neg- 
ligence per  se  for  a  passenger  to  jump  from  a  train  which  should  have 
stopped,  but  did  not,  though  the  passenger  took  that  course  to  save 
others  disiress  on  account  of  his  absence. 

In  Wyatt  v.  Citizens,  etc.,  Ry.  Co.,  55  Mo.  485,  where  a  boy  jumped 
from  a  street  car  in  rapid  motion,  it  was  held  error  to  instruct  the  jury 
that  such  an  act  was  negligence  per  se;  and  in  Morrison  v.  Erie  Ry.  Co., 
5C  N.  Y.  302,  where  a  passenger  stepped  from  a  slowly  moving  train  with 
plaintiff  in  his  arms,  his  act  was  held  negligence  per  se.  The  cases  are 
not  harmonious. 

Alighting  on  the  wrong  side  of  the  track.— Gonzales  r.  N.  Y.  &  H.  R. 
Co.,  50  How.  Pr.  126. 


QUESTIONS   FOR   THE    COUKT   AM)   JURY.  i>J 

2.  Neglect  of  duties  icquiriug  skill,  or  au  extraordinary 
amount  of  care. 

3.  Neglect  of  duties  requiring  less  than  ordinary  care. 

Or  at  a  place  not  designed  for  passengers,  has  been  held  negligence 
per  se.— Bancroft  v.  Boston,  etc.,  U.  Co.,  07  Mass.  275;  Pa.  R.  Co.  v. 
Zebe,  33  Pa.  St.  318;  37  Pa.  St.  420. 

Defect  in  Highway. — A  defect  in  a  highway  may  be  such  as  that  it 
may  be  declared  unsafe  as  a  matter  of  law. —  Prideaux  v.  Mineral  Point, 
43  Wis.  513;  Schmidt  u.  Chicago,  etc.,  R.  Co.,  83  111.  405. 

And  whether  a  person  has  used  due  care  in  traveling  on  a  street  or 
sidewalk;  but  this  is  usually  a  question  for  the  jury,  as  is  also  the 
inference  of  notice  from  the  length  of  time  a  defect  has  existed. —  Colley 
V.  Westbrook,  57  Me.  181. 

Other  cases  holding  that  the  question  is  for  the  jury  are,  Glasier  v. 
Town  of  Hebron,  C2  Hun,  137;  16  N.  Y.  S.  Rep.  503;  Sutton  v.  Town 
of  Vernon,  62  Conn.  1;  23  Atl.  Rep.  1020;  27  Atl.  Rep.  589;  Pomeroy  v. 
Inhabitants  of  Westfield,  134  Mass.  462;  28  N.  E.  Rep.  899;  Maxim  v. 
Town  of  Champion,  50  Hun,  88;  4  N.  Y.  S.  Rep.  515. 

Failure  to  Perlorm  a  Statutory  Duty. —  A  failure  to  perform  a  statu- 
tory duty  is  negligence  per  se. 

As  the  violation  of  an  ordinance  authorized  by  statute  prescribing  the 
speed  of  railroads  and  signals  of  warning  to  be  given  on  approaching 
crossings.  — Karle  v.  Kansas  City,  etc.,  R.  Co.,  55  Mo.  476;  Dahlstrom 
r.  St.  Louis,  etc.,  Ry.,  108  Mo.  525;  18  S.  W.  Rep.  919;  Pennsylvania  Co. 
V.  Uorton,  172  Ind.  189;  31  N.  E.  Rep.  45.  But  see  Lowery  v.  St.  Louis 
&  H.  Ry.  Co.,  40  Mo.  App.  554;  Mathiason  u.  Mayer,  90  Mo.  685;  2  S. 
W.  Rep.  834. 

Leaving  a  horse  unfastened  in  a  street  in  violation  of  an  ordinance. — 
Slemers  v.  Eisen,  54  Cal.  418;  Edwards  v.  Philadelphia  &  R.  R.  Co., 
148  Pa.  St.  531;  23  At!.  Rep.  894;  Olson  v.  Chicago,  etc.,  Ry.  Co.,  81 
Wis.  41;  50  N.  W.  Rep.  412,  1096;  Bott  v.  Pratt,  33  Minn.  323;  53  Am. 
Rep.  47. 

So  where  a  car  unlawfully  obstructs  a  highway  crossing. —  Peterson 
r.  Chicago  &  W.  M.  Ry.  Co.,  64  Mich.  621 ;  31  N.  W.  Rep,  548. 

Selling  a  pistol  cartridge  to  minor  in  violation  of  a  statute. —  Binford 
V.  Johnston,  82  Ind.  426;  42  Am.  Rep.  508. 

Failing  to  prottct  elevator  openings  as  required  by  statute. —  Mc- 
Rickard  v.  Flint,  13  Daly,  541. 

Or  to  cover  a  canal.— Platte  and  D.  C.  &  M.  Co.  v.  Dowell,  17  Colo. 
376;  30Pac.  Rep.  68. 

Navigating  steam -boat  without  having  its  boiler  inspected  in  compli- 
ance with  the  statute.—  Van  Norden  v.  Robinson,  45  Hun,  567. 


[45]     CHAPTER    11. 

NEGLECT   OF   DUTIES   REQUIRING   ORDINARY   CARE. 


Section  I. 

Neglect  of  Duties  Requiring  Ordinary  Care, 

By  the  expression  **  duties  requiring  ordinary  care"  is 
meant  those  duties  devolving  upon  persons  who  do  not  hold 
themselves  out  as  having,  nor  is  there  demanded  of  them, 
any  peculiar  or  extraordinary  care  or  skill.  Different  per- 
sons have,  of  course,  different  duties  to  perform  in  their 
different  employments  or  positions  in  life,  and  what  is 
ordinary  care  in  one  class  of  persons  may  not  be  so 
in  another,  and  as  has  been  already  stated,  supra ^  no  act 
can  be  said  to  be  per  se  negligent  or  careful,  but  only 
in  relation  to  circumstances.  Thus  more  care  will  in  most 
cases  be  expected  in  a  person  of  education  than  in  an  igno- 
rant person,  in  an  adult  than  in  a  child  ;  more  care  will  be 
required  in  driving  in  a  crowded  street  than  in  an  empty 
one,  and  so  forth;  but  with  respect  to  these  distinctions  the 
law  pays  no  further  regard  to  them  than  to  expect  all  men 
to  use  such  care  as  reasonable  persons  ought  to  do  in  such 
matters,  be  the  same  more  or  less.  Upon  the  other  hand, 
if  a  person  undertakes  to  do  something  which,  if  not  done 
with  great  skill  or  care,  must  be  injurious,  or,  if  he  is  doing 
something  for  his  own  advantage,  then  the  law  demands 
that  he  shall  bring  to  the  execution  of  that  which  he  has 
engaged  to  do  the  necessary  skill,  and  take  the  necessary 
care  in  the  execution  of  it.  And  where  the  law  thinks  it 
expedient  that  persons  exercising  certain  important  f  unc- 
(56) 


PERSONS    EXEUCISINU    SKILL.  57 

[40]  tions  should  be  made  more  than  ordiuuiily  careful, 
it  will  compel  them  to  bo  so.  These  cases  will  be  treated 
of  in  Chapter  III. 

Amongst  cases  illustrative  of  ordinary  duties  requiring 
no  particular  skill  or  care  ^;er  se,  and  only  requiring  or- 
dinary care  being  done  for  the  mutual  benefit  of  both 
parties,  are  all  those  which  arise  out  of  employment  of 
services  for  reward,  or  where  persons  come  into  collision 
in  the  course  of  pursuing  their  ordinary  avocations. 

The  law  telating  to  master  and  servant  will  be  found 
post  {a)  and  all  that  is  desired  to  say  here  is  that  in  all  cases 
where  ordinary  services  are  rendered  for  reward,  both  the 
employer  and  the  employed  are  liable  for  ordinary  negli- 
gence towards  one  another.  Such,  for  instance,  is  the  case 
of  an  ordinary  bailee  for  hire,  who  is  bound  to  take  ordi- 
nary care  of  the  thing  intrusted  to  him  by  the  bailor,  as  in 
the  case  of  deposits  of  goods  where  the  bailee  receives 
money  for  his  care  (&).  Also  where  chattels  are  let  to 
hire,  the  hirer  must  take  ordinary  care  of  them  (c). 

In  the  case  of  the  employment  of  skilled  labor  different 
considerations  will  arise.  It  will  be  seen  post^  Chapter 
III.,  that  there  are  many  persons  from  whom  the  law  re- 
quires an  extraordinary  amount  of  skill,  and  who  will  be 
held  liable  for  what  in  others  would  appear  to  be  slight 
neglect.  These  will  mostly  be  found  to  be  either  public 
officers  to  whose  services  the  law  compels  people  to  have 
recourse,  or  professional  persons  who  have  a  monopoly  or 
privilege  to  perform  certain  services  (cZ%  But  where  a 
private  person  who  is  free  to  choose  whom  he  will  employ 
selects  a  person  who  holds  himself  out  as  a  skilled  laborer, 
it  does  not  appear  that  the  law  will  in  general  hold  the  per- 
son so  selected  liable  for  "  slight  "  negligence.     It  would 

(a)  Cb.  n.,  8.  6.  IWer  ap   old    bargo    In    samo   state    a« 

(6)  Searle  r.  Laverick,  L.  U.  9  Q.  B.  when  hired;  Ilandforr.  Palmer, 6 Moore, 

122.  76;  Deanu  r.   Keate,  3  Camp.    4   (horse 

(c)  Shroder  r.  Ward,  13  C.  B.  N.  8.  cases). 

412;  32  L.  J.  C.  P.   150  (contract  to  de-  (d)  Campbell,  29,90,  2nd  cd. 


58        NEGLECT   OF   DUTIES    REQUIRING    ORDINARY   CARE. 

[47]  seem,  however,  that  he  must  show  some  degree  of 
skill,  and  the  absence  of  skill  would  render  him  liable  for  neg- 
ligence (e).  Thus  a  carpenter  must  show  some  knowledge 
of  carpenter's  work  (/),  a  builder  of  buildings,  etc.,  and 
it  is  obvious  that  the  amount  of  skill  which  ought  to  be 
shown  will  vary  according  to  the  particular  circumstances. 
The  more  skill  is  required  for  the  performance  the  more 
will  be  demanded  in  the  performance,  at  the  same  time 
that  due  allowance  is  made  for  the  difficulty  of  perform- 
ance. So,  also,  the  amount  of  skill  and  care  demanded 
will  be  greater  or  less  according  as  the  consequences  of 
neglect  are  more  or  less  serious. 

It  must  be  owned  that  the  question,  what  amount  of  care 
is  to  be  expected  from  one  who  holds  himself  out  as  a 
person  competent  to  do  work  in  an  ordinary  trade  which 
he  follows,  is  very  difficult  to  answer.  The  difficulty  arises 
in  defining  "skill."  As  soon  as  it  is  shown  that  a  man 
holds  himself  out  to  be  a  person  of  skill,  he  is  then  bound 
to  show  more  than  ordinary  care.  Those  cases  in  which  I 
have  thought  there  can  be  no  doubt  upon  the  subject  I  have 
placed  in  the  third  chapter ;  but  though  there  may  be  no 
doubt  that  a  medical  man  is  bound  to  show  more  than 
ordinary  care,  yet  it  is  very  doubtful  whether  the  same  rule 
applies  to  a  watchmaker,  or  to  the  case  {g)  cited  in  Mr. 
Robert  Campbell's  excellent  lectures  of  a  finisher  of  lustres, 
and  it  is  still  more  doubtful  whether  it  applies  to  a  brick- 
layer or  carpenter.  As  has  been  already  said,  no  act  is 
negligent  per  se,  but  is  only  so  where  it  is  a  breach  of  duty, 

(e)  Campbell,  p.  6,  2nd  ed.,  citing   D.  (gr)  Hlnshaw  v.  Arden,  Court  of  Ses- 

xix.  2,  9,  s.  5.  slons  Cases,  vol.  viil.  p.  933. 

(/)  Basten   v.   Butler,  7  East,  479; 
Brown  v.  Davis,  7  East,  480,  note  (a). 

If  the  distinction  as  to  degrees  of  negligence  is  to  be  recognized  at 
all  it  would  seem  to  be  applicable  here  under  the  different  classes  of  bail- 
ments of  chattels. 

Where  the  bailment  is  for  the  benefit  of  the  bailor  exclusively,  the 
bailee  is  liable  only  for  gross  negligence. — Schermer  v.  Neurath,  54  Md. 


PERSONS    KXEUCISINO    SKILL.  oi* 

[48]     and  every  man  is  in  duty  bound  to  bring  a  rcasonal)l(' 
amount  of  skill  to  tlio    performance    of    woric  which    he 

491;  Whitney  v.  Nat.  Bank,  50  Vt.  388;  56  Vt.  154;  Caldwell  v.  IlaU,  60 
Miss.  830;  Tancil  v.  Seaton,  28  Gratt.  GOl ;  Carrington  v.  Ficklln,  32 
Gratt.  G70;  First  Nat.  Bank  Carlisle  v.  Graham,  85  Pa.  St.  91 ;  First  Nal. 
Bank  of  AUentown  v.  Rex,  89  Pa.  St.  308;  Pattison  v.  Syracuse  Nat.  Bank, 
80  N.  Y.  82;  Dudley  v.  Camden,  etc.,  Ferry  Co.,  40  N.  J.  L.  25;  45  N.  J. 
L.  308;  Camp  v.  Carlisle  Deposit  Bank,  94  Pa.  St.  409;  Lawson  Bail.,  §0; 
Whiting  V.  Chicago,  etc.,  R.  Co.,  5  Dak.  90;  37  N.  W.  Rep.  222;  Ilubbell 
V.  Blandy,  87  Mich.  209;  47  N.  W.  Rep.  502;  Burk  v.  Dempster,  34  Neb. 
426;  51  N.  V.''.  Rep.  97(1;  Iliberuii  Bldg.  Assoc,  v.  McGrath,  154  Pa.  St. 
296;  26  Atl.  Rep.  377;  32  W.  N.  C.  233;  Carlyon  v.  Fitzhenny  (Arizona. 
—  ),  15  Pac.  Rep.  273;  Hillis  v.  Chicago,  etc.,  R.  Co.,  72  la.  228;  33  N. 
W.  Rep.  643;  Cannon  River  Mfgrs.  Assoc,  v.  First  Nat.  Bank,  37  Minn. 
894;  34  N.  W.  Rep.  741. 

Where  the  bailment  is  for  the  benefit  of  the  bailee  exclusively,  the 
bailee  is  liable  for  slight  negligence. —  Phillips  v.  Condon,  14  111.  84; 
Howard  v.  Babcock,  21  111.  259;  Watkins  v.  Roberts,  28  Ind.  167;  Patter- 
son V.  Mclver,  90  N,  C.  493;  Lawson  Bail.,  §  G. 

A  hotel  clerk  who  receives  a  registered  letter  for  a  guest  is  liable  for 
the  .slightest  negligence  in  making  a  proper  delivery  thereof. —  Joslyn  u. 
King,  27  Neb.  38;  42  N.  W.  Rep.  756. 

Where  the  bailment  is  for  the  mutual  benefit  of  both,  the  bailee  Is 
bound  to  use  ordinary  care  and  is  liable  for  ordinary  neglect,  as  where  a 
bank  is  bailee  of  bonds  deposited  as  security  for  a  loan. —  Jenkins  ».  Nat. 
Bank,  58  Me.  275;  Lawson  Bail.,  §  6.  See  Gleason  v.  Beers,  59  Vt.  681; 
10  Atl.  Rep.  86;  Preston  v.  Prather,  137  U.  S.  604;  11  S.  Ct.  Rep.  162; 
affirming,  29  Fed.  Rep.  498;  Onderkirk  v.  Central  Nat.  Bank,  52  Hun,  1; 
4  N.  Y.  S.  Rep.  734.  Illustrative  of  ordinary  care,  see  Kinchelo  v. 
Priest,  89  Mo.  240;  1  S.  W.  Rep.  235;  Am.  Dist.  Tel.  Co.  v.  Walker,  72 
Md.  454;  20  Ml.  Rep.  1. 

A  warehouseman  is  bound  to  use  ordinary  care. —  Moulton  v.  Phillips, 
10  R.  I.  218;  Myers  v.  Walker,  31  111.  353;  Jones  v.  Morgan,  90  N.  Y.  4; 
43  Am.  Rep.  131:  Mobile,  etc.,  R.  Co.  v.  Prewitt,  46  Ala.  63;  Seals  v 
Edmondson,  71  Ala.  509;  Merchants'  Wharf-Boat  Assoc,  v.  Smith 
(Miss.), 3  So.  Rep.  249;  following,  Id.  v.  Wood,  64  Miss.  661;  2  So.  Rep. 
76;  Oderkirk  v.  Fargo,  61  Hun,  418;  16  N.  Y.  S.  Rep.  220. 

Where  a  warehouseman  receives  grain  to  be  stored  for  the  owner,  and 
places  it  In  a  common  bin  with  his  own  and  that  received  from  the  other 
depositors,  and  sells  from  this  receptacle,  retaining  always  sufllclcnt  to 
supply  each  owner,  the  contract  continues  one  of  bailment,  and  the  ware- 
houseman is  not  liable  for  a  loss  resulting  from  an  acciclental  Are  not 
attributable  to  his  wrong  or  injury. — Rice  v.  Nixon,  97  Ind.  97;  Botten- 
berg  V.  Nixon,  97  Ind.  lOG;  Ledyard  v.  Ilibbard,  48  Mich.  421;  42  Am. 
Rep.  474. 


60        NEGLECT   OF   DUTIES    REQUIRING  ORDINARY   CARE. 

[49]     holds  himself  out  as  being  capable  of  performing,  and 
it  is  probably  impossible  to  tell  where  the  law  would  draw 

Safe  depositaries.—  Safe  Deposit  Co.  v.  Pollock,  85  Pa.  St.  391 ;  Gray 
V.  Merriam,  148  111.  179;  35  N.  E.Rep.  810;  following  Preston  v.  Prather, 
137  U.  S.  604;  11  S.  Ct.  Rep.  162;  affirming  46  111.  App.  337;  Roberts  v. 
Stuyvesant  Safe  Deposit  Co.,  123  N.  Y.  57;  25  N.  E.  Rep.  294;  reversing 
1  N.  Y.  S.  Rep.  862. 

And  so  is  a  livery  stable  keeper  bound  to  ordinary  care.—  Swann  v. 
Brown,  6  Jones  L.  150;  Berry  u.  Maris,  16  La.  An.  248.  See  Cloyd  v. 
Steiger,  134  111.  41;  28  N.  E.  Rep.  987.  He  is  not  an  insurer.— Dennis  v. 
Huyck,  48  Mich.  620;  42  Am.  Rep.  479. 

An  agister.—  Wood  ».  Remick,  143  Mass.  453;  9  N.  E.  Rep.  381. 

A  cotton  ginner.—  Kelton  v.  Taylor,  11  Lea,  264;  47  Am.  Rep.  284. 

One  taking  a  horse  on  trial  with  option  to  purchase  if  satisfactory. — 
Colton  V.  Wise,  7  111.  App.  395. 

A  workman  on  chattels. —  Russell  v.  Koehler,  66  111.  459;  Baird  v. 
Daley,  57  N.  Y.  236;  Halyard  v.  Dechelman,  29  Mo.  459;  Hillyard?).  Crab- 
tree,  11  Tex.  264. 

A  store-keeper  is  liable  for  the  loss  of  a  customer's  wearing  apparel 
while  the  latter  is  trying  on  garments. —  Bunnell  v.  Stern,  122N.  Y.5395 
25  N.  E.  Rep.  910;  reversing  14  Daly,  357;  WoodrufE  v.  Painter,  150  Pa. 
St.  91 ;  24  Atl.  Rep.  621.  But  see  Rea  v.  Simmons,  141  Mass.  361 ;  55  Am. 
Rep.  492. 

A  restaurant  keeper  is  liable  for  the  overcoat  of  his  guest.  — Ultzen  v. 
Nicols,  [1894]  1  Q.  B.  92.     Seeposi,  p.  419. 

An  agricultural  society  is  responsible  for  stolen  exhibits.  —  Vigo  Ag. 
Soc.  V.  Brumfleld,  102  Ind.  146;  52  Am.  Rep.  657. 

Abath-hoase  proprietor  is  liable  for  thefts  where  persons  are  indis- 
criminately admitted.  —  Bird  v.  Everard,  23  N.  Y.  S.  Rep.  —  ;  4  Misc. 
Rep.  104. 

But  in  all  these  cases  where  skill  is  required  it  is  to  be  understood 
that  it  means  ordinary  skill  in  the  particular  business  or  employment 
which  the  bailee  undertakes  or  in  which  he  is  engaged. — Lawson 
Bail.,  §  40. 

But  it  is  more  clearly  in  the  line  of  work  upon  a  chattel  that  the 
consideration  of  skill  avails;  and  here,  though  our  standard  of  ordinary 
diligence  still  applies,  it  is  more  likely  to  vary,  and  the  compensation  as 
well  according  to  the  delicacy  and  difficulty  of  the  work,  and  of  the  work- 
man's training,  habits  and  experience  and  reputation  for  the  particular 
kind  of  undertakings.  For  careless  custody  he  must  respond,  of  course ; 
but  the  main  undertaking  rises  in  plane  until  in  the  case  of  some  famous 
sculptor  or  painter  such  a  degree  of  ability  to  do  the  service  may  be 
engaged  and  paid  for  that  If  we  averaged  mankind  in  the  mass,  instead 
of  by  classes,  the  skill  should  be  pronounced  not  ordinary,  but  extraor- 
dinary. —  Lawson  Bail.,  §  40. 


PEK80NS    EXKKCISINQ    SKILL.  HI 

tho  line,  unci  snyall  thoi^e  on  this  side  of  the  lino  are  skilled 
in  tho  sense  that  they  are  liable  for  slight  negliiiencc,  and 
those  upon  tho  other  side,  althou<2;h  in  one  sense  skilled,  are 
only  liable  for  ordinary  negligence.  It  will  be  undoubtedly 
seen  (h)  that  the  law  does  regard  certain  skilled  persons  as 
bound  not  merely  to  exercise  such  ordinary  skill  as  may  bo 
used  in  their  profession  generally,  but  to  approve  them- 
selves to  bo  absolutely  skillful.  We  take  it,  then,  to  bo 
the  law,  that  while  the  jury  consider  whether  in  tho  case  of 
an  ordinary  avocation,  tho  person  exercising  it  has  done  so 
with  the  ordinary  skill  used  by  sensible  men  of  his  craft, 
yet  that  in  certain  cases  more  than  this  sort  of  skill  will  be 
demanded.  The  simple  practical  test  is  to  consider  what 
is  the  duty  which  the  particular  person  has  to  fulfill,  and 
whether  ho  has  reasonably  fulfilled  it.  Thus  a  person  who 
holds  himself  out  as  a  valuer  of  ecclesiastical  property, 
although  not  bound  to  possess  a  precise  and  accurate  knowl 
edge,  yet  is  bound  to  have  a  knowledge  of  the  general  rules 
and  of  the  broad  distinction  between  a  valuation,  between 
outgoing  and  incoming  tenants,  and  outgoing  and  incoming 
incumbents  (/).  Thus  a  manufacturer  of  any  ordinary 
article  is  bound  to  use  reasonable  care  and  skill  in  seeing 
that  it  is  fit  for  the  particular  purpose  for  which  it  is  made 
or  used;  and  he  is  responsible  for  latent  defects. 

[50]  The  seller  of  an  article  which  is  to  be  made  warrants 
that  article  to  be  lit  for  the  purpose  for  which  it  is  sold  (/j), 
but  in  the  case  of  carriers  the  rule  is  somewhat  different. 
There  the  carrier  only  warrants  that  tho  carriage  is  free 
from  defects,  patent  or  latent;  except  such  as  no  care  or 
prudence  can  discover  (l).  The  seller  or  letter  out  of  a 
specific  article  does  not  warrant  that  that  specific  article  is 
reasonably    fit    for   the    purpose    for  which  it  is  hired  or 

(h)8eeCh.  in.  note,  645;  Harris  r.  Watte,  51   Vt.  481; 

(O  Jenkins  v.  Botham,  15  C.  B.  168.  Poland  r.  Miller,  95  Ind.  :«7.) 
(A)  liandal  v.  Newson,  2  Q.  B.  D.  102.  (/)  Ueadlien  1  r.  Mid.  Uy.  Co.,  L.  R. 

[Ben],  on  Salctn,  Uh  Amer.  Ed.,  sees.  CCl  Q.  B.  .379, />t.sr,  Cli.  HI.,  8.  1. 


fi2        NEGLECT   OF    DUTIES    REQUIRING   ORDINARY    CARE. 

bought  (m).  But  there  is  au  implied  contract  on  the  part 
of  the  seller  or  letter  out  of  a  specific  article  that  he  will 
not  by  want  of  reasonable  care  allow  it  to  become  worse 
than  it  was  when  the  contract  was  made  (n). 

Persons  coming  into  collision  in  their  ordinary  avocations 
are  liable  for  ordinary  negligence,  for  their  duty  is  to  take 
ordinary  care.  The  owner  of  premises  is  liable,  as  I  think, 
for  the  ordinary  negligence  to  the  persons  whom  he  has 
allowed  to  come  there  for  their  advantage;  he  has  under- 
taken no  special  responsibility  with  respect  to  them  as  he 
would  have  done  had  he  invited  them  for  his  own  benefit, 
and  is  not  bound  to  take  more  than  ordinary  care;  but  I 
am  inclined  to  think  he  has  taken  some  higher  duty  upon 
him  than  that  of  a  gratuitous  bailee  (o). 

So,  also,  the  liability  of  host  to  guest,  or  visitor  at  his 
house  stands  upon  the  same  ground  (p).  The  relationship 
here  is  not  that  of  inviter  and  invited,  where  the  inviter  is 
liable  as  we  shall  see  (q)  for  slight  negligence;  but  the 
guest  takes  the  premises  as  he  finds  them,  subject  only  to 
the  duty  of  the  host  to  warn  against  any  trap.  Neither  is 
[51]  it  intended  to  speak  here  of  *«  host  "  in  the  sense  of 
innkeeper,  whose  position  is,  as  will  be  seen  (Ch.  III.,  s. 
19),  that  he  is  bound  to  exercise  more  than  ordinary  care. 
The  visitor  seems  to  be  in  the  position  of  a  bare  licensee, 
and  accordingly  it  has  been  said  that  the  host  is  only  liable 
for  something  in  the  nature  of  a  trap  (r)  ;  but  it  is  to  be 
observed  that  it  is  also  said  that  he  ought  to  take  reasonable 
care,  that  is  to  say,  ordinary  care  (s). 

(m)  Robertson  v.  Amazon  TagCo.,  7  Flack,  90  Ind.  205;  Camp  «;.  Wood,  76  N. 

Q.  U.  O.  5D3;  Gleasou  v.  Smith,  39  Han,  Y.  92;  Totten  v.  Phipps,  52  N.  Y.  364; 

<J17.  Parker  v.  Barnard,  135  Mass.  116.] 

(n)  Per  P.rett,  L.  J.,  in  Robertson  v.  (p)  Soathcote  v.  Stanley,  1  H.  &  N- 

Amazon  Tug  Co.,  at  p.  606.  248.    [Whart.  Neg.,  sec.  825;  Shearman 

(o)  Indcrmaurv.  Oraines.L.  R. 2C.P.  &  Redf.,  scc.449a.] 

311.    These  cases  will  be  found  treated  (7)  Post  s.  2,  and  Ch.  III.,  s.  2. 

of  .Tiorc  fully,  and  the  question  discussed  (r)  See  per  Bramwell,  B.,  in  Soath- 

In  e.  2,  Duties  of  Owners  of  Property,  p.  cote  v.  Stanley,  supra. 

:!0.    [Carlcton  v.  Franconia  Iron  Co. ,  99  (s)  See  this  question  diBCna&ei  post, 

.Maee.  216 ;  Thomp.  Neg.,  p.  304 ;  Nave  v,  Ch.  II,,  s.  2. 


LAW    OF    THi:    UUAD.  03 

So  when  a  man  driving  a  trap  oflcrs  a  seat  to  a  fricMid, 
each  purdiiing  his  own  husinesw  or  pleasure,  he  is  liable  for 
ordinary  ncgligenco  (t).  The  Coui-t  said  that  he  is  liable 
for  gross  negligence  only,  hut  I  am  inclined  to  think,  for 
the  reason  presently  given,  that  ho  is  liable  tor  ordinary 
negligence  (u). 

Persons  driving  or  riding  upon  the  highways  are  in  the 
exercise  of  their  lawful  and  equal  rights,  and  the  law  im- 
poses upon  them  the  duty  of  taking  ordinary  care  not  to 
injure  one  another;  and  the  same  with  regard  to  foot-pas- 
sengers and  drivers,  for  as  foot-passengers  and  drivers  of 
vehicles  have  an  equal  right  to  use  the  highway  (x),  so 
they  have  equal  duties  to  take  care  to  look  out  for  each 
other  (y). 

The  question  of  the  "  rule  of  the  road,"  as  it  is  called, 
often  gives  rise  to  some  difficulty.  It  should  be  remem- 
bered that  persons  are  not  bound  to  keep  to  the  right  side 
of  the  road  (z),  for  there  may  be  many  good  reasons  for 
going  to  the  other  side  ;  but  when  they  are  on  the  other 
side  they  ought  to  exercise  more  than  ordinary  care. 
There  may  even  be  occasions  when  it  would  be  negligence 
to  drive  upon  the  right  side  of  the  road,  as  when  another 
[52]  is  on  the  wrong  side  (a).  It  seems  to  be  jn-ima 
facie  evidence  of  negligence  against  a  vehicle  which  has 
run  into  another  vehicle  that  the  former  was  on  the  wrono" 
side.     See  Chapter  VI.,  Presumptions. 

Where  a  man  is  walking  in  a  public  street,  and  a  barrel 
falls  upon  him  from  a  window  and  injures  him,  he  is  enti- 
tled to  an  action  against  the  owner  of  the  barrel,  if  such 
owner  has  been  guilty  of  ordinary  negligence  {h).     This 

(0  Moflfatt'.  Bateman.L.  R.3P.C.115.  K.  81;  Meyer  r.  Llndell  R«ilwny,  C,  Mo. 

[See    Shearman   and  Hedfleld  on  Neg.  App.  27.    See  also  Oh.  V'.,  rrcsuu'ptlona 

''•\  cd.  sec.  17  u.,  sec  22.]  of  Negllffence. 

(li)  See  post,  8.  2.  (z)  ruckwell  r.  Wilson.  5  C.  A  P.  375. 

(x)  Boss  r.  L:tlon,  5  C.  &  P.  407.  (a)  Clay  v.  Wood,  5  Ksp.  44  ;  Wade  v. 

(y)  Cotton  f.  Wood,  8  C.  B.  N.  S.  569;  Carr,  2  1).  &  R.  2.V. ,  Tiirley  f.  Thomas,  8 

20  L.  J.  C.  P.  3:'3;  Hawkins  r.  Cooper,  8  C.  A  P.  lo:!  (a  Huddle- horse  case). 

'     *P.  473;  Williams  r.  Richards,  3  C.  &  (6)  Byrne  r.  Boadle.  2  II.  &  C.    722. 


64        NEGLECT    OF    DUTIES    REQUIRING   ORDINARY    CARE. 

case,  and  those  above  mentioned,  afford  very  good  illustra 
tions  of  the  truth  that  an  act  is  not  negligent  ^er  se,  but 
only  in  relation  to  circumstances,  and  that  in  some  circum- 
stances more  care  is  required  than  in  others.  A  man  driv- 
ing or  lowering  a  barrel  in  Cheapside  must  use  more  care 
than  would  be  required  of  him  in  a  country  lane ;  but  this 
is  a  distinction  of  fact  and  not  of  law. 

This   class   of   cases,  however,  will  be      Property,  s.  2,  in/ra.    [Corrigan  r.  Union 
fonnd   under   the   heading   Neglect  of       Sug.  Eefinery,  98  Mass.  577.] 
Duties  by  Owners  and  Occupiers    of 

Law  of  the  Road.  —  Foot  passengers  and  drivers  of  vehicles  have 
equal  rights  in  the  public  streets  and  highvi.'ays. —  Barker  v.  Savage,  45 
N.  Y.  191 ;  Brooks  v.  Schuerin,  54  N.  Y.  343;  Belton  v.  Baxter,  54  N.  Y. 
245;  Dunham  v.  Rackliff,  71  Me.  345 ;  Pigott  v.  Lilly,  60  Mich.  221 ;  27  N. 
W.  Rep.  3;  Schaefer  v.  Osterbrink,  67  "Wis.  495;  30  N.  W.  Rep.  922; 
Aznoe  v.  Conway,  72  la.  568;  34  N.  "W.  Rep.  422.  Bicyclists  have  equal 
rights  with  other  travelers.— Holland  v.  Bartch,  120  Ind.  46;  22  N.  E. 
Rep.  83.  See  collated  decisions,  33  Cent.  L.  J.  262;  Elliot  onRoads  and 
Streets,  pp.  618  —  635. 

It  is  the  duty  of  foot  passengers  and  hors  emen  to  give  way  to  loaded 
vehicles  on  narrow  thoroughfares. —  Beach  v.  Parmeter,  23  Pa.  St.  196. 

As  to  the  duty  of  pedestrians  to  look  both  ways  before  crossing  the 
business  streets  of  large  cities. —  See  Barker  v.  Savage,  45  N.  Y.  191,  and 
Williams  v.  Grealy,  112  Mass.  79. 

By  statute  law  in  some  States  and  generally  by  custom,  drivers  of 
vehicles  are  required  to  keep  to  the  right  of  the  center  of  the  road  so  far 
as  to  conveniently  admit  of  the  passage  of  travelers  meeting  them. — 
Levick  v.  Norton,  51  Conn.  461 ;  Mahogany  v.  Ward,  16  R.  I.  479 ;  17  Atl. 
Rep.  860.  A  bicycle  is  a  "vehicle"  or  "carriage"  within  the  meaning 
of  Pub.  St.  R.I.  ch.  66,  §  1;  a  law  of  this  kind.— State  v.  Collins,  16  R. 
I.  371;  17  Atl.  Rep.  131. 

A  statute  requiring  travelers  meeting  each  other  to  •'  seasonably  turn 
their  carriages  to  the  right  of  the  center  of  the  road,"  has  been  con- 
strued to  mean  to  the  right  of  the  center  of  the  worked  part  of  the 
road. —  Earing  v.  Lansingh,  7  Wend.  185. 

And  in  the  winter  season  when  the  worked  part  of  the  road  may  be 
obscured  by  snow,  to  the  right  of  the  center  of  the  beaten  or  traveled 
track.— Smith  v.  Dygert,  12  Barb.  613;  Jacquith  v.  Richardson,  8  Mete. 
213.    See  Daniels  v.  Clegg,  28  Mich.  32,  and  Commonwealth  v.  Allen,  11' 
Mete,  403. 

A  violation  of  this  law  will  not  prevent  a  recovery  by  plaintiff  in  case 
of  a  collision,  if  the  defendant  could  have  avoided  the  injury  by  the 
exercise  of  ordinary  care  (Jones  v.  Andover,  10  Allen,  20;  Smith  v.  Gard- 


LAW    OF    THK    UOAD.  05 

[53]  Persons  who  undertake  to  munaf^o  ships  are 
undertaking  a  matter  requiring  more  skill  and  involving 
probably  more  serious  dangers  than  riding  or  driving.  The 
question  of  their  liability  is  somewhat  complicated,  and 
will  l)e  found  treated  of  in  the  last  section  of  Chapter  III., 
post. 


Section  II. 

Neglect  of  Duties  by  Owners  ai^d  Occupiers  of  Heal  Property/. 

The  rights  which  a  man  has  over  his  own  land  are,  like 
other  rights,  subject  to  modification  by  the  conflicting  rights 

ner,  11  Gray,  418),  nor  will  it  render  the  defendant  liable  in  damages,  if 
the  plaintiff  could  have  avoided  a  collision  by  the  exercise  of  ordinary 
care. —  Parker  v.  Adams,  12  Mete.  415;  Kennard  v.  Burton,  25  Me.  39. 
The  mistake  of  the  plaintiff  in  turniuj;  while  in  a  dangerous  position  is 
not  negligence. —  Schimpf  v.  Sliter,  19  N.  Y.  S.  Rep.  044. 

**  A  better  statement  of  this  doctrine  is  that  the  fact  that  the  traveler 
drives  to  the  left  is  not  negligence  j)er  se,  nor  does  it  necessarily  make 
him  answerable  for  damages  in  case  of  a  collision,  but  it  is  a  circum- 
stance to  go  to  the  jury  as  evidence  of  negligence." — Thomp.  on  Nig., 
p,  383,  citing  Jones  v.  Andover,  10  Allen,  20 ;  Goodhue  v.  Dix,  2  Gray,  181 ; 
Spofford  V.  Harlow,  3  Allen,  176 ;  Clay  v.  Wood,  5  Esp.  44 ;  Wayde  v.  Lady 
Carr,  2  Dow.  &  Ry.  255,  and  Brooks  v.  Hart,  14  N.  H.  307;  Beckerle  v. 
Weiman,  12  Mo.  App.  354;  Newman  v.  Ernst,  10  N.  Y.  S.  Rep.  310;  Ran- 
dolph v.O'Riorden,  155  Mass.  331;  29  N.  C.  Rep.  683;  Walkup  v.  May,  !) 
Ind.  App.  409;  26  N.  E.  Rep.  917;  Ri^-pe  v.  Elting,  89  la.  ;  56  N.  W. 
Rep.  285;  Mooney  v.  Trow  D.,  P.  &  B.  Co.,  21  N.  Y.  S.  Rep.  957;  2  Miss. 
Rep.  238. 

But  more  care  is  exacted  of  one  on  the  wrong  side  of  the  road  than  if 
he  were  on  the  right  side. —  Pluckwell  v.  Wilson,  5  Car.  &  P.  375. 

This  rule  does  not  apply  to  a  case  where  the  road  is  clear  (Parker  v. 
Adams,  12  Mete.  415;  Foster  v.  Goddard,  40  Me.  64),  where  truvrlers  are 
going  in  the  same  direction  (Bolton  v.  Colder,  1  Watts,  360;  Foster  v. 
Goddard,  40  Me.  64;  Clifford  v.  Tyman,  61  N.  H.  608;  contra,  Knowles  v. 
Crampton,  55  Conn.  336;  11  Atl.  Rep.  593),  or  crossing  or  turning  into 
the  road  (Smith  v.  Gardner,  11  Gray,  418;  Lovejoy  v.  Dolan,  10  Cush. 
495), or  meeting  at  the  intersection  of  two  streets  (Garrigan  v.  Berry,  12 
Allen,  84;  seeNorrisu.  Saxton,  158  Mass.  46;  32N.  E.  Rep.  954),  to  vehicles 
meeting  foot  passengers  (Barker  v.  Savage,  45  N.  Y.  194),  to  street  cars 
or  vehicles  meeting  them  (Belton  v.  Baxter,  33  N.  Y.  Superior  Court,  182), 

5 


CiQ        NEGLECT    OF    DUTIES    REQUIRING   ORDINARY    CARE. 

of  others.  The  allegation  of  negligence  presupposes,  as 
[54]  we  have  seen  (c),  the  existence  of  equal  rights. 
Where  a  man  is  exercising  a  right  upon  his  own  land,  and, 
in  doing  so,  disturbs  the  right  of  another,  the  former  right 
may  be  dominant  or  subordinate,  in  either  of  which  cases 
no  question  of  negligence  arises.  If  A.  digs  a  hole  in  his 
land,  and  B.,  who  has  a  right  to  personal  security  (but  no 
right  to  be  on  the  land)  falls  into  it,  A.'s  right  is  paramount 
to  B.'s,  and  no  question  of  negligence  arises  (cZ) ;  but  if 

A.  had  permitted  B.  to  come  upon  his  land,  the  rights  would 
be  equal,  and  questions  of  negligence  would  arise,  viz., 
whether  the  pit  was  negligently  left  unguarded,  and  whether 

B.  was  using  his  right  of  being  there  with  care  (e).  If  A. 
is  owner  of  the  surface  of  the  land,  and  B.  has  rights  of 
mining  beneath,  or  beneath  adjoining  land,  A.'s  right  of 
support  for  his  land  is  paramount,  and  it  is  no  answer  that 
B.  has  used  the  utmost  care  (/" ).  So  if  A,  digs  a  hole  near 
the  edge  of  his  land,  and  causes  B.'s  ancient  house  or  one 
which  has  been  built  twenty  years  to  fall,  no  question  of 
negligence  arises,  but  a  wrong  has  been  committed,  what- 
ever care  may  have  been  taken  {g).  The  questions  of  right 
of  support  do  not  come  within  the  bounds  of  this  treatise. 


(c)  Oh.  I.  had  been  pnt  where  it  is  without  ever 

(d)  Knlghtt?.  Abert,6Pa.  St.  473.  See  having  had  the  support  of  his  land." 
post  as  to  excavations.  This  would  seem  to  be  a  very  difflcalt 

(e)  Williams  v.  Groucott,  4  B.  &  S.  test  to  apply  practically.  In  Hilton  v. 
149 ;  [Young  v.  Harvey,  16  Ind.  314 ;  coti-  Earl  Granville  5  Q.  B.  701,  and  in  Hilton 
tru.  Turner  v.  Thomas,  71  Mo.  596.]  v.  Whitehead,  13  Q.  B.  734,  in  one  count 

if)  Humphries  v.  Brogden,and  other  negligence   was  alleged  In  excavating 

cases.  under  a  house.    It  was  also  alleged  in 

(fir)  It  Is  said  In  Shearman,  s. 497,  that  Humphries  v.  Brogden,  but  was  there 

the  true  testis,  that,  although  not  liable  superfluous.    These    matters    are    dls- 

for  the  natural  consequences  of  with-  cussed  at  great  length  in  the  judgments 

drawing  the  support, "  yet  a  man  must  in  Angus  &  Co.  v.  Dalton  and  Commls- 

act  with  such  care  and  caution  that  his  sioners  of  Her  Majesty's  Works,  47  L.  J. 

neighbor   shall    suffer  no  more  Injury  Q.  B.  163;  L.  R.  3  Q.  B.  D.  85;  6  App.  Cas. 

than  would  have  accrued  if  the  structure  740.    See  infra. 

or  buildings  moved  in  the  streets  on  rollers  (Graves  v.  Shattuck,  35  N.  H. 
257),  and  it  has  been  held  not  to  apply  to  horsemen  meeting  vehicles. 
Dudley  v.  Bolles,  24  Wend.  466. 


LATERAL    Sri'I'OlCT.  G7 

But  in  the  caso  of  a  house  recently  built  upon  adjoinino; 
land,  it  may  bo  that  the  rights  are  equal,  and  that  the 
adjoining  owner  is  answerable  for  negligence  only  in  the 
exercise  of  his  right  to  use  his  own  land.  This  is  a  ques- 
tion, however,  which  is  involved  in  much  doubt.  Upon 
[55]  the  one  hand  many  expressions  of  the  judges  will  bo 
found  which  support  the  proposition  above  stated  (It),  while 
the  ca«<o  of  Gayford  v.  Nicholls  {i)  is,  I  think,  a  clear 
authority  to  the  contrary.  From  the  judgments  of  the 
judges  in  the  House  of  Lords  in  Angus  v.  Dalton  {k)  (see 
l)articularly  tho  judgment  of  Lord  Penzance),  it  appears 
that  if  an  owner  of  land  builds  a  house,  his  neighbor  may 
dig  his  own  soil  away  so  as  to  bring  the  house  down  ;  but 
Lord  Penzance  said  that  if  the  matter  were  res  Integra  he 
should  have  held  tho  contrary.  Lord  Blackburn  {I)  said: 
'*  I  see  no  ground  for  doubting  that  the  right  to  forbid 
digging  near  the  foundations  of  a  house  without  taking 
proper  precautions  to  avoid  injuring  it,  is  for  the  reasons 
given  by  Lush,  J.  (m  ),  one  very  little  onerous  to  the  neigh- 
bor, and  one  which  it  is  expedient  to  give  to  tho  owner  of 
the  house."  No  doubt  the  learned  Lord  of  Appeal  is 
speaking  of  a  house  which  has  been  built  for  twenty  years  ; 
but  it  seems  that  the  same  reasoning  would  apply  to  a  house 
just  built.  The  question  of  negligence  was  in  no  way  raised 
upon  the  facts  in  Angus  v.  Dalton.  Tho  text-writers  appear 
generally  to  doubt  what  the  law  is.  After  saying  that  the 
surface  owner  is  entitled  as  against  the  miner  to  support, 
Messrs.  Shearman  and  Redfield,  in  their  work  upon  the 
*'  Law  of  Negligence,"  s.  506,  say  that  •'  it  does  not  appear 
to  have  been  decided  whether  the  surface  owner  has  a  simi- 
lar right  to  support  for  buildings  erected  by  him  upon  the 
land,  but  we  think  he  should  have.  The  miner  is  undoubt- 
ed) Bradbee  v.  Christ's  Hospital,  4M.  (i)  Gayford  v.  Nicholls,  9  Exch.  702. 
A  G.  758;  Dodd  v.  Holme,  1  A.  &  E.  493;  {k)  6  App.  Gas.  740. 
DavtB  r.  L.  &  Blackwiill  Ky.  Co.,  3  Scott,  (/)  p.  827. 
•99;  I  M.  &  Gr.  7M;  Harris  v.  Rydlng,  6  (m)  3  Q.  B.  D.  89. 
M.  4  W.  60,  and  other  cases. 


68        NEGLECT    OF   DUTIES   REQUIRING   ORDINARY   CARE. 

edly  liable  for  damage  done  to  such  buildings  by  his  negli- 
gence. ' '  It  does  not  appear  whether  the  writers  are  speaking 
of  lateral  support  or  not;  nor  whether  they  are  speaking  of 
ancient  houses  or  not.  Mr.  Wharton  says,  s.  929,  "  When- 
ever the  oioner  of  the  soil  has  the  right,  so  far  as  concerns 
ad-  [56]  joining  buildings,  so  to  excavate,  he  must  exer- 
cise this  right  with  the  diligence  good  builders  are  in  this 
respect  accustomed  to  employ  in  similar  circumstances  ;  " 
and  he  cites  Jeffries  v.  Williams  {n)  and  other  cases; 
but  Jeffries  v.  Williams  was  not  a  case  of  an  owner.  Here 
again,  also,  the  meaning  of  the  passage  is  somewhat 
obscure. 

Mr.  Goddard,  in  his  admirable  treatise  on  the  "  Law  of 
Easements"  (2d  ed.),  p.  41,  after  pointing  out  that  it 
was  thought  in  Rogers  v.  Taylor  (o)  that  there  was  a  dis- 
tinction between  subjacent  excavations  and  adjacent,  de- 
termines that  "  support  for  buildings  in  an  easement  which 
must  be  acquired,  not  a  natural  right  {p).  So,  also,  a  man 
may,  after  his  land  has  been  excavated  for  twenty  years, 
acquire  an  easement  for  support  of  the  adjacent  land  in  addi- 
tion to  his  natural  right."  So  far  he  appears  to  be  dealing 
with  a  paramount  right,  and  he  does  not  say  what  would 
be  the  effect  of  excavating  negligently  near  a  modern  house. 
He  remarks  that  "  though  it  is  rather  beyond  the  scope  of 
this  treatise,  the  mere  fact  of  contiguity  of  buildings  im- 
poses an  obligation  on  the  owners  to  use  due  care,"  and  it 
is  submitted  that  this  might  be  extended  to  the  point  in 
question. 

Mr.  Gale  discusses  this  question  at  considerable  length 
(see  5th  ed.  by  Gibbons,  419-446).  In  the  case  of  adjoin- 
ing buildings  he  states  the  law  to  be,  that  a  man  must  use 
no  unnecessary  violence  in  removing  an  encroachment,  but 
with  this  limit,  is  entitled  to  the  free  use  of  his  own  prop- 


(n)  Jeffries  v.  WlUiame,  5  Exch.  792.  (p)  See  the  judgment   of    the  Lord 

(o)  Rogers  V.  Taylor,  2  H.&N.  828;  27      Chancellor  in  Angus  v.  Dalton,  6  App. 
L.  J.  Ex.  173.  Gas.  740. 


LATEUAL    SUPPOUT.  69 

crt}';  nnd  in  the  case  of  excavating  near  a  modern  house, 
p.  44(),  note,  "  if  the  mere  removal  occasions  tlio  damage, 
ho  is  not  liable,  however  negligent ;  but  if  the  manner  of  the 
removal  extends  his  acts  beyond  the  limits  of  his  own  prop- 
erty, and  is  a  trespass  upon  the  plaintilFs  laud,  ho  is 
liabli'." 

[57]  The  doubtful  state  of  the  law  is  also  noticed  in 
2  Wms.  Saunders,  note  to  Smith  v.  Martin,  p.  802, 
note  (rt). 

On  the  whole,  I  think  it  is  not  unreasonable  to  say  that 
an  owner  of  land  has  a  right  to  dig  in  his  own  ground,  close 
beneath  or  close  besido  his  neighbor's  modern  house,  and 
his  neighbor  has  a  right  to  have  a  house  on  the  edge  of  his 
own  land,  and  the  law  reasonably  regards  the  two  rights  as 
equal;  and,  as  a  consequence,  a  negligent  exercise  of  such 
rights  is  actionable  as  negligence  ;  but  in  the  case  of  an 
ancient  house,  the  law  reasonably  says  that  the  right  of  the 
owner  of  the  house  is  paramount. 

In  the  case  of  adjoining  houses  there  can,  I  think,  be  no 
doubt  that  a  presumption  may  arise  from  length  of  time 
or  other  circumstances,  of  an  absolute  right  to  lateral  sup- 
port (rj),  and  then  the  question  of  negligence  docs  not 
arise,  for  the  right  to  support  is  paramount;  and  further, 
that  where  this  presumption  cannot  be  made,  it  often 
becomes  a  question  whether,  from  the  mere  fact  of  con- 
tiguity, the  defendant  has  been  negligent  or  not  in  re- 
moving the  lateral  support  (r),  and  if  ho  has,  he  is  liable 
to  an  action  for  nesliffonce. 

(7)  Sec  per  Cockburn,  C.  J..  In  Angns  tion.    At  all  events,  It  ma.v  bo  acqaircd 

V.  Ualton,  L.  U.  3  Q.  II.  D.  at  p.  116.    Seo  by  grant,  express  or  implied." 
*.  c.  on  appeal,  4  Q.  B.  n.  162;  48  L.  J.  Q.  (r)  Walters  v.  Pfell,  1  51.  A  M.  :i(>2; 

B.  225 ;  C  App.  Gas.  740.    It  must  be  borne  Dodd  v.  Holme,  1  A.  &  K.  4'.i:t ;  Massoy  v. 

In  mind  that  Angus  r.  Dalton  was  a  case  Goyder,  4  C.  &  P.  161 ;  Goddard,  ,i.  42; 

where  support  was  claimed  for  n  build-  Peyton  v.  London  (Mayor  of),  'J  B.  AC. 

ing    by   land,    not   for   a   building    by  723  (no  occasion  to  shore  up  adjoining 

another  building.   "It  Is  doubtful,"  eaye  building);  Chadwick  r.  Trowor,  6  Bing. 

Mr.  Goddard,  2nd  ed.,  p.  187,  "whether  N.  C.  1  (no  occasion  to  give  notice   to 

a  lateral  support  for  one  building  from  owner  — defendant  must  have  notice  or 

another  can  be  acquired  by  proscrip-  knowledge  of  the  danger). 


70        NEGLECT   OF    DUTIES    REQUIRING   ORDINARY    CARE. 

So,  also,  in  the  case  of  adjoining  mines,  the  question  will 
arise  whether  there  is  a  paramount  right,  or  whether  the 
rights  are  equal?  (s)  If  there  is  a  mere  user  of  a  para- 
mount right  of  property,  there  is  no  ground  for  an  action 
of  negligence;  but  if  something  is  done  by  the  owner  of 
property  which  is  not  the  necessary  or  ordinary  user  of  his 
property  but  something  which  alters  the  character  of  his 
[58]  property  and  so  injures  his  neighbor,  the  question 
of  negligence  arises,  for  he  is  no  longer  in  the  exercise  of 
a  paramount  right  (t). 

The  duty  to  take  care  having  arisen,  the  next  question  is, 
what  is  the  amount  of  care  which  should  be  taken  ?  This  is 
governed  by  the  general  principles  stated  ante^  so  that  where 
an  owner  of  property  is  using  his  property  for  his  own 
advantage  only,  he  is  bound  to  take  more  than  ordinary 
care  (w);  where  for  the  benefit  of  both  parties,  ordinary 
care:  and  where  for  the  benefit  of  another,  less  than  ordi- 
nary care. 

The  owner  of  realty  is  liable,  like  the  owner  of  personalty, 
neither  more  nor  less,  for  negligence  (cc)  ;  and  is  no  more 
responsible  for  the  consequence  of  the  user  of  it  in  a 
manner  in  which  it  was  never  intended  to  be  used  than  is 
the  owner  of  personal  property  (y). 

Where  the  rights  are  equal,  as  where  a  person  is  upon 
the  premises  in  the  exercise  of  a  right,  as  in  the  right  of 
navigation  of  a  river  (2),  or  the  right  of  passing  along  a 

(8)  Smith  V.  Kenrlck,  7  C.  B.  515.  (.y)  Fanioy    v.    Scales,    29    Cal.    243 

(<)  Compare  Wilson  u.  Waddell.L.R,  (builder  i)l!iced  staging  upon  the  cornice 

2  App.  Gas.  95;  and  Fletcher  v.  Smith,  2  of  a  building;  held,  owner  of  building 

App.  Gas.  781.  not  liable.    [Shearman  &  Bedfield,  sec. 

(M)  Smith  V.  Fletcher,  L.  R.  2  App.  500.] 

Cas.  781.    See  this  case  p"8<.  («)  White  t;.  Phillips,  15  C.B.N.  S.  245. 

(a;)  lieedie   v.    Northwestern   lly.,  4 
Exch.  244. 

The  questions  of  lateral  and  subjacent  support  have  been  discussed 
ante,  pp.  5,  6,  7,  and  8.  Since  writing  those  pages,  the  Hp«se  of  Lords 
have  dismissed  the  appeal  in  the  case  of  Mitchell  v.  Darley  Main  Colliery 
Co.,  53  L.  J.  Rep.  Q.  B.  471,  noted  ante,  p.  9,  thus  aflarming  the  judgraent 


COMINC    ri'OX    LAM)    HV    INVITATION 


71 


[59]     highway   («),  or  some  other  right  (h),  or  has  coiiio 
by  iavitalion  (c),  express  or  inipliod  {d)y  the  owner  of  the 


(«)  Charch  of  the  Ascension  r.  Hack- 
hurt,  3  mil.  1'J:J;  Kearney  v.  L.  H.  AS. 
Ky.  Co.,  L.  K.  5  il  H.  411 ;  C  (,).  H.  76!) ;  40 
L.  J.  g.  U.  i&'i  {l»rlck  foil  from  ralhviiy 
briiliie  upon  plalntltf  in  liit;li\vay)  ;  Hyrne 
r.  Boaillo,  33  L.  J.  Kx.  13;  2  il.  &  C.  7'22 
(barrel  from  window  upon  plalntllf  In 
hljjliway).  [As  where  plalntllf  was 
struck  by  a  brick  falling  from  a  building 
In  process  of  erection,  the  defendant 
wa^«  held  liable  because  of  the  omission 
to  construct  barriers,  Jager  i*.  Adams,  1'23 
Mass.  '26;  s.  c.  '25  Am.  Rep.  7;  but  In 
Mauerman  v.  Seluierls,  71  Mo.  101,  it  was 
left  to  the  jury  to  determine  whether  the 
Injury  was  caused  by  defendant's  negli- 
gence In  falling  to  provide  a  sufUclcnt 
barrier,  or  to  plaintiff's  negligence  in 
disregarding  the  one  provided. 

Where  plalntllf  was  struck  by  a  brick 
falling  from  a  dilapidated  building  while 
stopping  to  tie  his  shoestrings  on  the 
doorslll  of  the  building,  his  head  being 
on  a  lino  with  the  street,  defendant  was 
held  liable.  Murray  v.  McShane,  52  Md. 
217;  «.  c.  30  Am.  Rep.  367.  See  McCul- 
lough  t'.  Shoneman,  S.  C.  Pa.,  41  Leg. 
Intell.  130;  12  Weekly  Law  Bull.  291, 
where  the  Injury  was  caused  by  the  fall 
of  a  waste  paper  bag,  and  Jessen  v. 
Swclgert,  S.  C.  Cal.,  4  W.  K.  Rep.  586,  by 
the  fall  of  an  awning  sheet  insecurely 
fastened.]  —  [A  person  struck  by  snow 
falling  from  a  building  while  he  Is  right- 
fully In  the  highway  properly  unloading 
a   wagon    may    recover  for  his   Injury. 


Smotliurst  v.  Proprietors  Ind.  Cong. 
Church,  14S  Mass.  '2(il ;  111  N.  K.  Hep.  3(57- 
See  Ilannem  i'.  Pence,  40  Minn.  127  ;  41  N. 
W.  Uep.  057.  So  it  is  negligence  to 
throw  bales  of  hay  upon  a  jiubllc  side- 
walk without  giving  Municlent  warning. 
Deliringf.  Coiiistock,  78  Mich.  l.W  ;  43  N. 
W.  Uep.  104'.).  So  to  droi)  materials  from 
buildings.  Dixon  r.  Pluns  (Cal.).  31  I'ac. 
Rep.  931 ;  also,  same  case,  on  rehearing, 
98  Cal.  aS4;  33  Pac.  Uep.  26S;  Alexander 
V.  Mandeville,  33  111.  App.  58!) ;  Ilally 
V.  Bennett,  (Minn.)  49  X.  W.  Rep.  18*.). 
But  see  Angus  r.  Lee,  40  III.  App.  304.] 
(6)  Scott  I'.  Liverjjool  Dock  Co.,  3  11. 
&  C.  50;  34  L.  J.  Kx.  17  (sugar  bags  fell 
from  a  lift  upon  |>lalntlir,  who  was  there 
as  customhouse  ollicer  to  inspect) ;  Wel- 
fare 1-.  L.  B.  &  S.  C.  Uy.  Co.,  L.  U.  4  Q.  B. 
693) ;  38  L.  J.  t).  B.  '241  (roll  of  zinc  fell 
from  roof  where  defendant's  man  had  a 
right  to  be;  plaintiff  looking  at  time 
tables  where  he  had  a  right  to  be ;  held, 
that  as  a  matter  of  fact  there  was  no 
evidence  of  negligence). 

(c)  Chapman  v.  Rothwell,  El.  Bl.  & 
El.  168;  Smith  v.  London  Docks  Co.,  L. 
R.  3  C.  P.  326;  37  L.  J.  C.  P.  217 ;  Tebbutt 
r.  Bristol  Uy.  Co.,  L.  U.  6  Q.  B.  73;  40  L. 
J.  Q.  B.  78;  Holmes  i'.  Northeastern  Uy., 
L.  R.  6  Exch.  123;  40  L.  J.  Ex.  121.  This 
class  of  cases  comes  within  our  second 
division,  and  will  be  found  treated  of 
l>ost,  Ch.  III. 

(d)  Indermauer  v.  Dames,  L.  R.  2  0. 
P.  311;  36  L.  J.  C.  P.  181. 


of  the  Court  of  AppeaL  Lord  Blackburn  dissented.  See  Law  Journal 
(London),  Feb,  13,  188G. 

In  City  of  North  Vernon  v.  Voegler,  S.  C.  Ind.,  25  Am.  Law  Rep.  101, 
Elliott,  J.,  said:  •*  If  that  case  can  be  regarded  as  well  decided,  it  must 
be  deemed  an  exception  to  the  general  rule,  which  is  that  one  action  and 
one  only  can  be  maintained  for  a  breach  of  duty  constituting  a  tort." 

In  that  case  (City  of  North  Vernon  v.  Voegler)  it  was  held  that  "  where 
the  cause  of  action  is  the  negligence  and  unskillfulness  of  the  olllcers  of 
a  municipal  corporation  in  the  improvement  of  a  street,  the  injury  Is 
complete  and  permanent,  constituting  but  one  cause  of  action,  and  in  a 
suit  on  that  cause  of  action  all  damages  present  and  prospective  may  be 
recovered,  and  for  fresh  damages  resulting  from  the  improvement,  a 
second  action  will  not  lie." 


72        NEGLECT   OF   DUTIES    REQUIRING    ORDINARY    CARE, 

property  will  be  liable  for  negligence  of  some  degree, 
according  to  circumstances.  Very  usual  examples  of  this 
kind  of  negligence  will  be  found  ^os^  Ch.  III.,  s.  8,  *'  Car- 
riers," as  to  Railway  Companies. 

The  question,  what  sort  of  care  the  owner  of  property 
ought  to  take  towards  a  person  invited  upon  his  premises, 
is  governed  by  the  ordinary  rules  stated  ante,  but  is,  I  think, 
subject  to  some  modification.  It  for  his  own  benefit  only, 
he  is  bound  to  take  more  than  ordinary  care  (e) ;  if  for 
the  mutual  benefit  of  both  parties,  ordinary  cure  at  the 
least  (/);  and  if  for  the  benefit  of  the  person  invited, 
perhaps  something  less  than  ordinary  care  (^). 

It  is  not  within  the  scope  of  the  present  work  to  enter 
[60]  into  a  discussion  of  the  law  of  Nuisance.  But  it  not 
unfrequently  happens  that  that  which  is  a  nuisance  to  the 
public  at  large,  causes  an  injury  to  an  individual  distinct  from 
that  which  he  suffers  in  common  with  the  public.  For  that 
which  he  suffers  in  common  with  the  public  he  has  no  rem- 

(c)  This  will  be  treated  ot  post,  Ch.  (/)  Campbell,  2nd  ed.,  p.  61;  orper- 

III.,  division  2,  Neglect   of   Owners  of      haps  more  —  see  post,  Ch.  III. 
Property.  (g)  This  falls  within  Ch.  IV. ;  but  see 

post. 

Negligence  toward  one  coming  upon  another's  Land. —  The  owner 
of  property  is  liable  for  injuries  caused  by  his  negligence  to  persons 
coming  upon  his  land  by  invitation. —  Davis  v.  Central  Congregational 
Society  of  Jamaica  Plain,  129  Mass.  367;  37  Am.  Rep.  368;  Nave  v.  Flack. 
90  Ind.  20.T ;  46  Am.  Rep.  205 ;  Bennettu.  Louisville,  etc.,  R.  Co.,  102  U.  S, 
577;  Freer  v.  Cameron,  4  Rich.  L.  228;  Welch  v.  McAllister,  15  Mo.  App. 
492;  Totten  v.  Phipps,  52  N.  Y.  354;  Campbell  v.  Portland  Sugar  Co.,  62 
Me.  552;  Latham  v.  Roach,  72  111.  179;  Pastene  v.  Adams,  49  Cal.  87; 
Parker  v.  Barnard,  135  Mass.  116;  46  Am.  Rep.  450;  Learoyd  v.  Godfrey, 
138  Mass.  315;  Crogan  v.  Schiele,  53  Conn.  186;  21  Rep.  553;  Phillips  v. 
Library  Co.,  55  N.  J.  L.  307;  27  Atl.  Rep.  478;  Atlanta  Cotton  Seed  Oil 
Mills  V.  Coffey,  80  Ga.  145;  4  S.  E.  Rep.  759. 

Express  or  Implied. —  As  where  one  comes  upon  business  premises 
for  business  purposes. — Nave  v.  Flack,  90  Ind.  205;  Freer  v.  Cameron, 
4  Rich.  L.  228;  Welch  u.  McAllister,  15  Mo.  App.  492;  Dash  v.  Fitzhugh,  2 
Lea,  307;  Emery  v.  Minneapolis  I.  Ex.,  56  Minn.  460;  67  N.  W.  Rep. 
1132;  Howe  v.  Ohmart,  7  Ind.  App.  32;  33  N.  E.  Rep.  466;  O'Callaghan 


COMING    UPON    LAND    15Y    INVITATION.  73 

[Gl]     edy     by    action,     even    although    he     suffers    in    a 
greiiter  degree  (/()• 

Generally    speaking,    if  u  nuisance  is  created,  and  any 

(h)  Winterbottom  r.  Lord  Derby,  L.  B.  2  Ex.  816;  36  L.  J.  Ex.  104. 

r.  Bode,  84  Cal.  489;  24  Pac.  Rep.  269.     See  29  Am.  Law  Reg.  (a.  8.) 
'U,  u. 

Upon  railroad  premises. —  Beard  v.  Coun.,  etc.,  R.  Co.,  48  Vt.  101; 
Knight  V.  Portland,  etc.,  R.  Co.  Ct)  Me.  234;  Patten  r.  Chicago,  etc.,  R. 
Co.,  32  Wis.  524;  Toledo,  etc.,  R.  Co.  v.  Crush,  67  111.  262;  Sweeny  v. 
Old  Colony,  etc.,  R.  Co.,  10  Allen,  368;  Tobin  v.  Portland,  etc.,  R.  Co.,  5i> 
Me.  183.     See  post,  pp.  390,  3U3. 

Upon  wharfs.—  Low  v.  Grand  Trunk  Ry.  Co.,  72  Me.  313;  39  Am.  Rep. 
331;  Wendell  v.  Baxter,  12  Gray,  404.  See  Carleton  w.  Franconia  Iron, 
etc.,  Co.,  99  Mass.  216;  Franklin  Wharf  r.  Portland,  67  Me.  46;  Alberto. 
State,  66  Md.  325;  Cleary  v.  Oceanic  Steam  Nav.  Co.,  40  Fed.  Rep.  1)08; 
Philadelphia  &  R.  R.  Co.  u.  City  of  New  York,  38  Fed.  Rep.  159;  Newall 
V.  Bartlett,  114  N.  Y.  390;  21  N.  E.  Rep.  900;  The  Calvin  P.  Harris, 
33  Fed.  295;  lleisseubuttcl  y.  City  of  New  York,  30  Fed.  Rep.  456;  Barker 
V.  Abcndroth,  102  N.  Y.  406;  60  Am.  Rep.  821.  Lessee  of  wharf  is  liable, 
J)elaney  t;.  Pennsylvania  R.  Co.,  78  Hun,  393;  29  N.  Y.  S.  Rep.  226; 
Gluck  V.  Ridge  wood  Ice  Co.,  9  N.  Y.  S.  Rep.  254;  Smith  o.  Havemeycr, 
32  Fed.  Rep.  844;  O'Rourke  v.  Peck,  29  Fed.  Rep.  223. 

The  liability  extends  to  one  letting  a  hall  to  which  the  public  is  in- 
vited.—Camp  V.  Wood,  76  N.  Y.  92;  32  Am.  Rep.  232. 
Or  the  proprietor. —  Currier  v.  Boston  Mu.sic  Hall  Ass.,  135  Mass.  414. 
And  to  a  fair  association. —  Selinas  o.  Vermont  State  Agr.  Soc,  60  Vt. 
249;  15  Atl.  Rep.  117.     See   Emery  v.  Minneapolis   I.   Ex.,    infra,  and 
Latham  t?.  Roach,  posf,  pp.  268,  278. 

The  owner  of  property  has  been  held  liable  for  injuries  received  by 
persons  coming  upon  his  land:  — 

Where  a  police  oflicer  entered  a  building  to  inspect  an  elevator  opening 
which  a  statute  provided  should  be  guarded  by  railings. —  Parker  w.  Bar- 
nard, 135  Mass.  116;  46  Am.  Rep.  450. 

Where  an  officer  entered  premises  at  the  request  of  a  tenant  to  arrest 
a  person  disturbing  the  peace. —  Learoyd  v.  Godfrey,  138  Mass.  315. 
See  Ryan  v.  Thompson,  38  N.  Y.  Superior  Court,  133 ;  Blatt  v.  McBurron, 
161  Mass.  21;    36  N.  E.  Rep.  468. 

Where  one  had  a  right  of  way  over  the  premises  of  another,  and  was 
Injured  In  the  exercise  of  that  right. —  Totten  t>.Phipps,52  N.  Y.  354. 

So  where  the  invitation  is  implied  from  long  user. —  Graves  w.  Thomas, 
95  Ind.  361;  48  Am.  Rep.  727;  Brown  v.  Hannibal,  etc.,  R.  Co.,  50  .Mo. 
461;  Oliver  v.  Worcester,  102  Mass.  489;  Carskaddon  o.  Mills,  6  Ind. 
App.  22;  31  N.  E.  Rep.  559;  Phillips  w.  Library  Co.,  55  N.  J.  L.  307; 
27  Atl.  Rip.  478. 


74        NEGLECT    OF   DUTIES   REQUIRING   ORDINARY    CARE. 

one  is  injured  by  the  nuisance  in  a  particular  manner,  and 
not  in  common  with  the  public,  an  action  of  negligence 
will  lie  (i).  This  is  the  principle  of  the  decisions  as  to 
injuries  arising  from  excavations  or  obstructions  upon  or 
near  to  roads  and  paths  upon  which  strangers  have  a  right 
to  be,  and  which  we  shall  presently  consider. 

Where  there  is  no  nuisance,  but  a  person  having  come 
upon  the  land  without  invitation  (k)  (the  owner  having  only 
passively  acquiesced  in  his  coming),  sustains  injury  by 
reason  of  a  mere  defect  in  the  premises,  it  has  been  held 
that  the  owner  is  not  liable  for  negligence,  for  such  person 
has  taken  all  the  risk  upon  himself  (Z).  So  where  the  de- 
ceased was  employed  to  watch  certain  premises  where  the 
defendant  employed  workmen  with  a  crane  and  bucket, 
and  the  deceased  had  nothing  to  do  with  the  work,  but  got 
under  the  bucket  and  was  killed,  it  was  held  that  at  most 


(i)  Barnes  r.  Ward,  pos<;  Honnsell  t'.  {I)  Gautret  v.  Egerton,  L.  R.  2  C.  P."^ 

Smith,  post.  —  [Atlanta  Cotton  Seed  Oil  371 ;  36  L.  J.  C.  P.  191 ;  Hounsell  v.  Smith, 

Mills  V.  Coffey,  80  Ga.  145;  4  S.  E  Rep.  post.    See  also  Wilkinson  v.   Falrie,  32 

759;  Thomas  v.  Henjes,  62  Hun,  620;  16  L.  J.  Ex.  73;  1.  H.  &  C.  633  tdark  passage 

N.  y.  S.  Rep.  700.]  and  staircase) ;  Burchell  v.  Hickisson, 

(A)  The    question    of    invitation    Is  50  L.  J.  Q.  B.  101  (child  falling  through 

treated  of  In  Ch.  III.,  s.  2.  railings  in  bad  repair). 


Where  a  person  came  upon  the  land  of  another  without  invitation  to 
secure  employment  from  the  owner  and  was  injured  by  a  machine  used 
for  raising  ore  which  was  defective  but  not  obviously  dangerous,  it  was 
held  that  he  could  not  recover  from  the  owner,  though  he  could  show 
that  the  owner  might  have  ascertained  the  defect  by  the  exercise  of 
reasonable  care. —  Larmore  v.  Crown  Point  Iron  Co.,  101  N.  Y.  391;  54 
Am.  Rep.  718;  4  N.  E.  Rep.  752;  reversing  31  Hun,  87.  So  where  a 
dealer  in  foundry  sand  upon  visiting  defendant's  foundry  to  sell  sand 
was  directed  by  a  clerli  to  go  in  and  find  the  foreman  and  while  looking 
for  the  foreman  in  one  of  the  buildings  he  was  injured  by  the  falling  of 
an  iron  plate,  a  nonsuit  was  properly  entered. —  McLean  v.  Burnham 
(Pa.),  8  Atl.  Rep.  25.  See  Galveston  Oil  Co.  v.  Morton,  7  Tex.  400;  7 
S.  W.  Rep.  756. 

Where  one  tooic  refuge  in  a  public  hotel  to  escape  a  storm,  together 
with  others  attending  a  fair  on  the  adjoining  grounds,  and  the  piazza  of 
the  hotel  above  the  room  in  which  plaintiff  was  gave  away  by  reason  of 
the  great  weight  upon  it,  injuring  the  plaintiff,  it  was  held  that  there  was 


COMING    UrON    LAM)    WITHOUT    INVITATION.   .  I.) 

[1)2]     lio  was  a  baro  licoiisco  aiul  that  there  was  no  duty 
cast  upon  the  defeudaiit  to  seo  that  the  deceased  did  iu)t 


no  actionable  negligence  on  the  part   of   the  defendant. —  Converse    '■ 
Walker,  30  Hun,  DM. 

Where  one  took  shelter  from  a  storm  in  the  station  house  of  a  railroad 
company,  and  while  there  was  struck«and  killed  by  a  portion  of  the  roof 
torn  off  by  the  wind,  the  company  was  held  not  liable  in  an  action  by  his 
administratrix.— The  PittsburKh,  etc.,  R.  Co.  v.  Binsham,  29  Ohio  St.  304. 

Where  plaintiff  went  to  defendant's  newspaper  olUce  late  in  the  even- 
ing for  the  purpose  of  procuring  the  insertion  of  an  advertisement  and 
the  counting  room  being  closed  he  ascended  to  the  upper  floor,  and  in 
consequence  of  an  insulllcient  light  fell  into  an  elevator  opening  and 
was  Injured,  it  was  held  that  he  was  a  mere  licensee  to  whom  the  de- 
fendant owned  no  duty  to  keep  its  premises  safe. —  Parker  v.  Portland 
Publishing  Co.,  69  Me.  173;  21  Am.  Rep.  262. 

Where  a  boy  ten  years  old  went  into  a  lumber  yard  which  had  been 
frequently  used  as  a  passage  way  by  the  public,  and  was  injured  at  a 
point  flfty-four  feet  from  the  highway  by  the  fall  of  lumber,  it  was  held 
that  no  recovery  could  be  had  for  injuries  so  received. —  Vanderbeck  r. 
Hendry,  34  N.  J.  L.  407.  See  also  Jeffersonville,  etc.,  R.  Co.  v.  Gold- 
smith, 47  Ind.  43;  Morgan  v.  Penn.  R.  Co.,  7  Fed.  Rep.  78. 

Where  a  railroad  company  owned  a  piece  of  unenclosed  land  traversed 
by  a  foot  path  leading  from  a  public  street  to  a  house  on  another  piece 
of  unenclosed  land  adjoining  owned  by  the  company,  and  plaintiff,  while 
passing  over  the  path  to  the  house  where  he  boarded,  shortly  after  dark, 
fell  into  a  well  near  the  pathway,  the  court  held  a  cause  of  action  was 
not  made  out  by  the  pleading,  saying  that  the  plaintiff  failed  to  show 
either  the  knowledge  or  permission  of  appellant  so  to  use  the  lands,  and 
distinguished  the  case  from  Graves  v.  Thomas  (!t5  Ind.  301),  "  where  the 
path  had  been  used  as  a  public  side  walk  so  as  to  give  public  rights  in  It 
as  such."  — The  Evansville,  etc.,  R.  Co.  v.  GrifQn,  100  Ind.  221. 

Wliere  several  owners  of  adjoining  lots  had  established  for  their  own 
convenience  a  road  along  one  line  thereof  connecting  with  a  public  alley 
at  one  extremity  and  a  street  at  the  other,  and  one  of  the  owners  built  a 
platform  across  it  so  low  that  one  sitting  on  a  wagon  could  not  drive 
under  It,  and  this  had  existed  for  many  years,  the  public  having  used  the 
road  in  that  condition,  and  a  man  employed  by  one  of  the  other  owners  in 
hauling  merchandise  on  said  road  was  killed  by  contact  with  the  platform 
after  dark,  there  being  no  light  or  other  signal  of  warning,  and  he  being 
Ignorant  of  the  platform,  it  was  held  no  action  would  lie  against  the  pro- 
prietor of  the  platform.— Cahill  v.  Layton,  57  Wis.  000;  46  Am.  Rep.  40. 
See  Stevens  v.  Nichols,  (Mass.),  29  N.  E.  Rep.  1150.  See,  also  post, 
p.  277,  note. 

In  Davis  v.  The  Chicago,  etc.,  Ry.  Co.,  (58  Wis.  04(;'>.  it  was  k-ft  to  the 


76        NEGLECT   OF   DUTIES   REQUIRING   ORDINARY    CARE.^ 

run  into  [63]  danorer  (m),  but  it  is  not  clearly  stated 
whether  he  had  any  other  or  what  duty  towards  him. 

(to)  Batchelor  v.  Fortesque,  11  Q.  B.  D.  474. 

jury  to  determine  whether  there  was  negligence  on  the  part  of  the  serv- 
ants of  the  defendant  leaving  a  steam  boiler  and  engine  upon  its  track 
unattended  whereby  plaintiff  was  injured  by  an  explosion  while  walking 
upon  the  company's  right  of  way  which  had  been  constantly  used  by  the 
public  for  purposes  of  travel  on  foot  with  its  knowledge  and  acquies- 
cence. 

The  owner  is  under  no  obligation  to  keep  his  premises  safe  as  against 
trespassers  and  bare  licensees. 

As  where  a  child  came  upon  defendant's  premises  some  distance  from 
the  highway  and  fell  into  an  uncovered  cistern. —  Hargreaves  v.  Deacon, 
25  Mich.  1;  S.  P.,  Breckenridge  v.  Bennett,  7  Kulp,  95.  See  Gillespie  w. 
McGowan,  100  Pa.  St.  144.  Or  fell  into  an  abandoned  reservoir. —  Clark 
V.  City  of  Manchester,  62  N.  H.  577.  Or  had  a  foot  crushed  in  a  draw- 
bridge.—  Maginnis  v.  City  of  Brooklyn,  1  N.  Y.  S.  Rep.  522.  Or  was 
scalded  by  steam  from  a  factory. —  Mergenthaler  v.  Kirby  (Md.),  28  St. 
Rep.  1065.  The  rule  is  that  ordinarily  the  owner  of  premises  owes 
no  duty  of  immunity  to  trespassers,  though  the  latter  be  infants. — Frost 
V.  Eastern  R.  R.,  64  N.  H.  220;  9  Atl.  Rep.  790.  See  Fredericks  v.  Illinois 
Cent.  R.  Co.,  46  La.  Am.  1180;  15  So.  Rep.  413;  Klix  v.  Nieman,  68  Wis. 
271 ;  32  N.  W.  Rep.  223;  Galligan  v.  Metacomet  Mfg.  Co.,  143  Mass.  527; 
ION.  E.  Rep.  171;  Miller  v.  Pennsylvania  R.  Co.  (Pa.),  8  Atl.  Rep.  209; 
Ratte  V.  Dawson,  50  Minn.  454;  62  N.  W.  Rep.  965;  McDonald  v.  Union 
Pac.  Ry.  Co.,  35  Fed  Rep.  38. 

So  there  was  no  liability  where  one  went  into  a  room  of  a  factory 
intended  exclusively  for  workmen  and  on  the  door  of  which  there 
was  a  sign  of  "  no  admittance  "  and  was  injured. — Zoebisch  v.  Tarbell, 
10  Allen,  385.  Or,  where  a  teacher  and  pupils  came  by  permission  of  a 
corporation  to  visit  its  power  house  and  machinery. — Benson  v.  Balti- 
more Traction  Co.,  77  Md.  535:  26  Atl.  Rep.  973. 

Where  one  pays  a  friendly  call  on  the  operator  of  a  telegraph  at  an 
oflBce  where  occasional  messages  are  sent  for  pay  although  the  office  is 
owned  and  operated  by  a  railroad  for  its  own  purposes,  the  railroad  is 
liable  to  him  only  for  gross  negligence. — Woolwine  v.  Chesapeake  &  O. 
R.  Co.,  36  W.  Va.  329;  155  S.  E.  Rep.  81. 

The  owner  is  not  liable  where  a  laborer,  employed  in  loading  ice  on 
board  a  vessel  from  a  wharf,  after  finishing  his  work  went  on  board  the 
vessel  to  gratify  his  curiosity,  an  1  fell  down  a  hatchway  and  broke  his 
leg.  —  Severy  v.  Nickerson,  120  Mass.  306. 

Where  one  in  response  to  an  alarm  of  fire  ran  through  defendant's 
store  and  fell  down  an  opening  in  the  rear.  —  Kohn  v.  Lovett,  44  Ga. 


TRESPASSERS   AND    BARE    LICENSEES.  77 

[fi4]     Thus,  where  the  Ijindlord  of  a  house  lot  it  out  in 
jipartments  and  allowed  the  tenants  to  use  the  roof  as  a 


251.  See  Gibson  t).  Leonard,  143  III.  182;  32  N.  E.  Rep.  182;  afflrmlng 
37  111.  App.  344.  Or  was  otherwise  Injured  in  discharging  the  duties  ol 
a  fireman.  —  Woodruff  v.  Bowen,  13G  Ind.  431;  34  N.  E.  Rep.  1113; 
Bfcherr.  Danit-ls  (H.  I.),  29  Atl.  Rep.  G. 

Where  visitors  of  a  tenant  occupying  a  house  in  the  rear  of  a  lot  In 
passing  out  entered  an  untlnislied  building  Instead  of  pursuing  an  open 
way  and  were  thereby  injured.  —  Roulston  v.  Clark,  3  E.  D.  Smith,  366. 
See  Walker  v.  Wlnstanley,  155  Mass.  301 ;  29  N.  E.  Rep.  518. 

Where  a  father  bringing  a  dinner  to  his  son,  who  is  in  defendant's 
employ,  falls  into  an  unguarded  elevator  phaft  in  defendant's  building 
and  is  killed,  defendant  was  held  to  be  not  liable.  —  Gibson  v.  Sziepi- 
enski,  37  III.  App.  601. 

Thus,  it  is  apparent  that  a  licensee  or  trespasser  ordinarily  enters 
land  at  his  own  risk.  —  Stevens  v.  Nichols,  155  Mass.  472;  29  N.  E. 
Rep.  1150;  Pluramer  v.  Dill,  156  Mass.  426;  31  N.  E.  Rep.  128;  Sterger 
V.  Vansiclen,  132  N.  E.  Rep.  491);  30  N.  E.  Hep.  987;  De  Gray  v.  Aiken, 
43  La.  Ann.  798;  9  So.  Rep.  747;  Sullivan  v.  Boston  &  II.  R.  Co.,  156 
Mass.  878;  31  N.  E.  Rep.  128;  Caniff  v.  Blanchard  Nav.  Co.,  66  iMich. 
638;  33  N.  W.  Rep.  744;  Metcalfe  v.  Cunard  S.  S.  Co.,  147  Mass. 
66;  16  N.  E.  Rep.  701;  Lacket  w.  Lutz,  94  Ky.  287;  22  S.  W.  Rep.  218; 
Hector  r.  Boston  E.  L.  Co.,  161  Mass.  558;  37  N.  E.  Rep.  773;  Ander- 
.«on  p.  Scully,  31  Fed.  Rep.  161;  Flannigan  «.  American  Glucose  Co.,  11 
N.  y.  Rep.  688;  Trask  t7.  Shotwell,  41  Minn.  66;  42  N.  W.  Rep.  699; 
Truax  v.  Chicago,  etc.,  Ry.  Co.,  83  Wis.  547;  53  N.  W.  Rep.  842;  Gibson 
V.  Leonard,  143  111.  182;  32  N.  E.  182. 

Where  a  child  of  a  tenant  of  a  tenement  house  got  out  on  the  platform 
of  a  fire  escape  attached  to  the  building  and  fell  through  a  defective  trap 
door.— McAlpine  v.  Powell,  70  N.  Y.  126;  26  Am.  Rep.  555.  See,  gen- 
erally, Union  Stock  Yard,  etc.,  Co.  v.  Rourke,  10  111.  App.  474;  Magln- 
nls  V.  City  of  Brooklyn,  7  N.  Y.  S.  Rep.  194;  Fredericks  ».  Illinois 
Cent.  R.  Co.,  46  La.  An.  1180;  15  So.  Rep.  413. 

But  an  exception  to  this  rule  exists  in  the  case  of  children  of  tender 
years  where  the  danger  is  exposed  and  such  as  might  be  reasonably 
apprehended. 

As  where  an  infant  strayed  upon  an  unfenced  lumber  yard  and  was 
killed  by  the  falling  of  lumber  negligently  piled. —  Bronson  v.  Labrot,  81 
Ky.  638.  See  Earl  v.  Crouch,  61  Ilun,  624;  16  N.  Y.  S.  Rep.  770;  131 
N.  Y.  613;  SON.  E.  Rep.  864. 

Where  a  boy  eight  years  old  was  injured  by  meddling  with  a  parcel  of 
dynamite  In  an  unenclosed  shed  near  his  father's  land. —  Powers  v. 
Harlow,  53  Mich.  507.  But  where  a  child  forced  open  a  fastened 
window  and  procured  a  torpedo,  deposited  by  a  railroad  in  Its  section 


78         NEGLECT    OF    DUTIES    REQUIRING    ORDINARY    CARE. 

drying  room  for  the  purpose  of  drying  their  linen,  and  the 
plaintiff  went  upon  the  roof  for  thtit  purpose  and  slipped 
against  the  railing  round  the  edge  of  the  roof  which  let  him 
through,  being  out  of  repair.  Lord  Coleridge  distinguished 
M'Martin  v.  Hanay  (n),  where  there  was  a  common  stair- 
case to  several  flats,  by  saying  that  the  staircase  was  a 
necessary  part  of  the  holding,  and  it  was  the  landlord's 

(n)  10  Court  of  Sees.  Cas.,  3rd  Series,  The  landlord  was  not  liable  for  the  in- 

411.— [A  three-year-old  child  fell  through  jury.— Miller  v.  Woodhead,  104  N.  Y.  471; 

a  sky-light  in  a  flat  roof  used  in  drying  11  N.  E.  Eep.  57.] 
clothes  by  a  tenant  whom  it  was  visiting. 

house,  and  was  injured  by  the  explosion  of  the  torpedo,  the  railroad  was 
not  liable.  —  Slayton  V.  Freemont,  etc.,  R.  Co.,  40  Neb.  840;  59  N.  W. 
Rep.  510. 

This  exception  is  often  invoked  where  children  have  been  injured  by 
meddling  with  dangerous  machinery  exposed  to  their  approach  and  often 
attractive  to  them,  as  railroad  turn-tables,  engines,  street  cars,  etc.  In 
such  cases  the  question  of  negligence  is  generally  left  to  the  jury. — 
Hydraulic  Works  Co.  v.  Orr,  83  Pa.  St.  332;  Birge  v.  Gardiner,  19  Conn. 
507;  Railroad  Co.  v.  Stout,  17  Wall.  657;Keefe  V.Milwaukee,  etc.,  R.  Co., 

21  Minn.  207;  Whii'lyu.  Whitman, 1  Head.  610;  Mullaney  ■».  Spence,15  Abb. 
Pr.  319;  G.  C.  &  Santa  Fe  Ry.  Co.  v.  Evansich,  61  Tex.  3,  24;  Id.  57  Tex. 
126;  Houston  &  T.  C.  Ry.  Co.  v.  Simpson,  60  Tex.  103;  A.  &  N.  R.  R,  Co. 
V.  Bailey,  11  Neb.  332;  Nagel  v.  The  Missouri  Pac.  Ry.  Co.,  75  Mo.  653; 
42  Am.  Rep.  418;  Kansas  Central  Ry.  Co.  v.  Fitzsimmons,  22  Kan.  686; 
Kolsti  V.  Minneapolis,  etc.,  Ry.  Co.,  32  Minn.  133;  Robinson  v.  Oregon, 
etc.,  Ry.  Co.,  7  Utah,  493;  27  Pac.  Rep.  689;  Moynihan  v.  Whidden,  143 
Mass.  287;  9  N.  E.  Rep.  615;    Walsh  v.  Fitchburg  R.  Co.,  67  Hun,  604; 

22  N.  Y.  S.  Rep.  441;  Ferguson  v.  Columbus  &  R.  Ry.  Co.,  77  Ga.  102; 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Styron,  66  Tex.  421;  1  S.  W.  Rep.  161; 
O'Malley  v.  St.  Paul,  M.  &  M.  Ry.  Co.,  43  Minn.  289;  45  N.  W.  Rep.  440; 
O'Conner  v.  Illinois  Cent.  R.  Co.,  44  La.  An.  339;  10  So.  Rep.  678;  Gun- 
derson  v.  N.  W.  Elevator  Co.,  47  Minn.  161;  49  N.  W.  Rep.  694;  Daniels 
V.  New  York,  etc.,  R.  Co.,  154  Mass.  349;  28  N.  E.  Rep.  283;  Barrett  v. 
Southern  Pac.  Co.,  91  Cal.  296;  27  Pac.  Rep.  666;  Day  v.  Essex  Electric 
St.  Ry.  Co.,  159  Mass.  238;  34  N.  E.  Rep.  186;  Schmidt  u.  Kansas  City 
Distilling  Co.,  90  Mo.  284;  1  S.  W.  Rep.  865;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
McWhirter,  77  Tex.  356;  14  S.  W.  Rep.  26;  Ft.  Worth  &  D.  C.  Ry.Co. 
V.  Robertson  (Tex.),  16  S.  W.  Rep.  1093;  Id.  v.  Measles,  81  Tex.  474;  17 
S.W.  Rep.  124;  Callahan  v.  Eel  River  &  E,  R.  Co.,  92  Cal.  84;  28  Pac. 
Rep.  104.  See  Webb's  Pollock  on  Torts,  pp.  584  et  seq.;  and  20  C.  L. 
J.  400. 


TRESPASSERS    AND    BARE   LICENSEES.  79 

duty  to  keep  it  safe.  It  was  an  implied  condition  in  the 
bargain.  And  the  court  held  that  the  defendant  was  not 
liable  (o). 

But  such  owner  will  be  liable  for  anything  in  the  na- 
ture of  a  trap  upon  the  premises,  known  to  him,  and  as 
to  which  he  gives  no  warning  to  the  licensee  {p).  He 
must  not  do  anything  to  alter  the  premises,  so  as  to  be 
likely  to  cause  injury,  without  notice  to  the  licensee  (q). 
Upon  the  whole  I  incline  to  think,  with  Mr.  Campbell  (?•)» 
that  the  owner  is  bound  to  take  ordinary  care  with  respect 
to  a  bare  licensee.  The  question  is,  as  I  think,  one  of 
great  difficulty.  It  is  said  that  the  licensee  being  there 
merely  for  his  own  advantage  can  only  demand  that  slight 
care  which  a  gratuitous  bailee  is  bound  to  display,  and  so 
far  the  proposition  is  correct;  but  I  am  not  sure,  if  a  gra- 
tuitous bailee  were  to  indicate  a  place  of  deposit,  whether 
he  would  not  be  undertaking  that  that  particular  place  was 
reasonably  fit  for  the  deposit,  and  if  so,  a  similar  agreement 
would  apply  to  an  owner  who  gives  leave  to  come  upon 
[65]  his  property,  viz. :  that  he  has  undertaken  that  his 
property  is  in  some  degree  fit  for  the  licensee  to  use.  If 
this  be  so,  it  seems  that  he  ought  to  take  ordinary  care. 
The  courts,  however,  have  distinctly  held  that  the  owner  is 
only  liable  for  "gross"  negligence,  because  he  is  in  the 
same  position  as  a  gratuitous  bailee  (s)  ;  but  I  am  inclined 
to  think  the  assumption  is  not  accurate.  I  think  that  the 
question  is  only  further  obscured  by  insisting  that  the 
owner  must  be  guilty  of  an  act  of  commission  to  render  him 
liable  to  the  licensee  (0-     It  may  bo  very  frequently  the 


(o)  Ivay  V.  Hedges,  0  Q.  B.  D.  80.  supra.—  [Riley  v.  Llssner,  ICO  Mass.  330; 

(p)  Sonthcote  v.  Stanley,  1  H.  &  N.  35  N.  E.  Rep.  1130.] 

217;  Seymour  v.  Maddox,  16  Q.  B.  326;  (r)  pp.  119-122.    See  also  Wharton,  s. 

White  r.  France,  L.  U.  2  C.  P.  D.  308;  46  349. 

L.  J.  0.  P.  823;  Belch  v.  Smith,  7  H.  &  N.  (s)  MoflFatt  v.  Bateman,  L.  R.  3  0.  P. 

736;  Pickard  v.   Smith,  10  C.  B.   N.  8.  115;  Corby  v.   Dill,   supra;   Gautret  v. 

*'**•  Egerton,  supru. 

(q)  Corby  r.  IIllI,  4  C.  B.  N.  S.  556;  27  (0  See  Southcote  v.  Stanley,  11  H.  & 

L.  J.   C.    P.    318;    Gautret   v.    Egerton,  N.  247;  Uorby  r.  IIlll,  wpra. 


80        NEGLECT   OF   DUTIES   REQUIRING   ORDINARY   CARE. 

case  that  omissions  are  slio^hter  neglects  than  acts  of  com- 
mission; but  they  may  very  well  be  the  contrary,  and 
sometimes  are  so.  If  the  neglect  be  of  a  grave  and  obvious 
character,  it  would  matter  nothing  whether  it  was  an  omis- 
sion or  commission.  For  instance,  it  would  matter  nothing 
whether  a  signalman  omitted  by  grave  and  obvious  negli- 
gence to  pull  the  handle  to  direct  an  express  upon  its 
proper  line,  or  whether  he  negligently  pulled  the  wrong 
handle. 

Where  there  is  something  done  by  the  owner  which  is  in 
the  nature  of  a  nuisance  or  of  a  wanton  injury,  he  will  be 
liable  to  an  action  for  negligence  even  by  a  trespasser  (u) 
as  if  an  owner  of  premises  with  great  recklessness  shot  a 
trespasser,  or  if  the  owner  set  spring  guns  upon  his  prem- 
ises and  injure  a  trespasser  (x).  But  where  a  trespasser 
took  shelter  from  a  storm  in  a  ruinous  house  not  fenced  off 
from  the  road,  and  a  wall  fell  upon  him  and  injured  him, 
it  was  held  that  he  could  not  recover  (?/). 

Upon  this  principle  it  has  been  held  that  where  an  owner 
[66]  or  occupier  of  lands  makes  an  excavation  upon  his 
land  so  near  to  a  public  highway  as  to  be  dangerous  under 
ordinary  circumstances  to  persons  passing  by,  it  is  his  duty 
to  take  reasonable  care  to  guard  such  excavation  ;  and  he 
is  liable  for  injuries  caused,  even  if  such  persons  are 
consciously  {z)  or  unconsciously  (a)  straying  from  the 
way  (5). 

Where  the  excavation  is  at  a  considerable  distance  no 

(m)  Degg  V,  Midland  Ry.,  1  H.  &  N.  Aldrich  v.  Wright,  53  N.  H.  396;  16  Am. 

773  at  p.  780.  Bep.  339] 

(,r)  Bird  v.  Holbrook,   4  Bing.   628;  (?/)  Lary  v.  Cleveland  Ry.  Co.,  78  Ind. 

Wooten  V.  Dawkins,  2  0.    B.  N.  S.  412.  323;  41  Amer.  Rep.  572. 

[Hooker  w.  Miller,  37  la.  613;    State  v.  (s)  Blyth   v.  Topham,  Cro.  Jac.  158; 

Moore,  31  Conn.  479,  but  see  Johnson  v.  Knight  v.  Abert,  6  Pa.  St.  472. 

Patterson,  14     Conn.   1,   and    Gray   v.  (a)  Hounsell  v.  Smith,  7  C.  B.  N.  8. 

Coombs,  7  J.  J.  Marsh.  478.    A  person  731;  Barnes  w.  Ward,  9C.  B.  392. 

may  protect  his  shop  from  burglary  by  (6)  It  is  no  answer  to  say  that  some 

setting  up  a  spring  gun  therein.    State  other  persons  are  bound  by  statute  to 

V.  Moore,  31  Conn.  479.]  —  ^Churchill  v.  fence  the  highway.    Welter  v.  Dunk,  4 

Hulbert.  110  Mass.  42;  14  Am.  Rep.  578;  F.  &  F.  298.    See  Elliott  on  Roads  and 

Streets,  p.  542. 


EXCAVATIONS    ON    LAND.  81 

such  cure  need  be  taken.  What  is  a  considerablo  distance 
it  is  impossible  to  say,  and,  in  truth,  each  case  depends 
upon  its  own  facts  (c). 

A  person  who  negligently  or  intentionally  set  lire  to 
anything  on  his  own  land  was  liable  at  common  law  to  an- 
other, if  the  lire  extended  to  his  property  and  injured  it  ((7), 
and  the  statute  G  Anne,  c.  31,  and  the  Buildings  Act,  14 
Geo,  III.  c.  78,  which  refer  only  to  accidents,  do  not  pro- 
tect a  person  guilty  of  such  culpable  negligence  (e). 

Where  a  hay-rick  was  carelessly  put  together  and  ignited, 
doing  damage  to  the  plaintill''s  cottage,  the  jury  was 
directed  that  the  plaintiff  could  recover  in  an  action  for 
negligence  {f).  It  has  been  held  in  America  that  a  per- 
son who  uses  a  steam-engine  on  his  own  laud  ought  to  use 
the  ordinary  means  of  preventing  the  sparks  from  doing 
injury  to  his  neighbor  (</);  and  in  another  case  where 
a  man  set  fire  to  brush  and  the  wind  blew  the  sparks  upon 
his  neighbor's  land,  it  was  said  that  he  was  liable  whether 
ho  might  or  might  not  have  reasonably  anticipated  the 
[67]  particular  manner  in  which  the  fire  was  actually 
communicated  (Z?)  ;  and  so  in  another  case  (?')  the  defend- 
ants were  held  responsible  although  they  could  not  reason- 
ably have  anticipated  that  such  injury  as  occurred  would  be 


(c)  In  nardcasUof.  South  Yorks.Ry.,  (rf)  Year  Book,  2  H. 4  f.  18  pi.  6. 
4  n.  &  N.  67,  and  In  Binks  r.  S.Y.  Uy..3  («}  FillUer  v.  Phlppard,  11  Q.  B.  347; 
B.  A  S.  244  ;  32  L.  J.  Q.  B.  28,  twenty-four  TuberUeld  t-.  Stamp,  1  Salk.  13,  note  (a). 
feet  was  held  to  be  such.    InanAuicri-  (/)  Vaughan  r.Menlove,  7C.&  P.  525; 
can  case,  one  or  two  feet  off  the  road  was  3  Blng.  N.  C.  4C8;  for  Injuries  from  ex- 
held  suflBclent  to  protect  the  defendant  plosions  of  gas,  sec  Ch.  Ill,  8. 5. 
from  an  action,  Uowland  v.  Vincent,  10  (y)  Teull  r.  Barton,  40  Barb.  137. 
Mete.    3;tl  [contra  Beck  v.  Carter,  68  N.  (h)  IllKglne  v.  1)«  woy,  107  Mass.  45*4. 
T.  288] ;  but  this  case  is  doubtful  author-  Sec  Averltt   r.  Murrell,  4  Jones,  N.    C. 
Ity.    See  Shearman,  p.  BO'.t;  Bigelow  on  323;  Fahn  r.  Reichart,  8  Wis.  2M. 
Torts,  p.  6t>8.    As  to  excavations,  etc.,  (»)  Smith  v.  L.  &  S.  W.  By.  Co.,  infra. 
made  by  corporations  acting  under  stat- 
utory powers,  see  Ch.  111.,  8.  Q.poat. 


The  owner  is  liable  for  injaries  caused  by  excavations  upon  bis  land 
near  on  the  highway. —  Joues  v.  Nichols,  4(5  Ark.  207;  65  Am.  Hep.  r.75. 
In  Beck  v.  Carter  (G8  N.  Y.  283)  the  excavation  was  ten  feet  from  the 

n 


82        KEGLECT    OF   DUTIES   REQUIRING    ORDINARY    CARE. 

[68]  caused  by  the  fire  (^').  In  England  the  general  prin- 
ciple (?)  of  the  common  law  that  when  a  man  brings  upon 

(ft)  As   to   the   spreading   of   a  fire  (Z)  The  keeping  of  savage  animals  is 

beyond  a  point  where  the  plaintiff  him-  the  best  known  illustration  of  this  prin- 

self  might  have  stopped  it,  see  Kuhn  v.  clple.    See  post, 
Jewett,  ante, 

line  of  an  alley  way,  but  the  intervening  space,  the  owner  permitted  to 
be  used  as  a  public  highway. 

In  Vale  v.  Bliss  (50  Barb.  318)  the  excavation  was  ''two  feet  two 
inches  back  from  the  street  line,  and  seven  feet  six  inches  back  from  the 
inner  line  of  the  sidewalk,  there  being  a  space  of  five  feet  four  inches, 
which  although  forming  a  part  of  the  street,  had  been  devoted  to  the  pur- 
pose of  a  court  yard. 

In  Norwich  v.  Breed  (30  Conn.  535)  the  excavation  was  several  feet 
■from  the  highway. 

In  Young  v.  Harvey  (16  Ind.  314)  the  owner  of  an  unfinished  well  in 
an  unenclosed  lot  in  a  city  was  held  liable  for  injuries  caused  by  plain- 
tiff's gelding  falling  therein.  (See  Haughey  v.  Hart,  62  la.  76;  contra 
Turner  v.  Thomas,  71  Mo.  596.)  In  Stratton  v.  Staples,  59  Me.  94,  there 
was  an  unguarded  descending  roll  way  within  one  foot  of  the  sidewalk 
leading  to  a  basement. 

In  Homan  v.  Stanley  (66  Pa.  St.  464)  a  cellar  excavation  had  been 
carried  to  the  curbstone  for  the  purpose  of  constructing  a  vault  under 
the  street.  (See  also  Congreve  v.  Smith,  18  N.  Y.  79,  and  Anderson  v. 
Dickie,  1  Robt.  238.)  In  all  these  cases  defendant  was  held  liable  for 
resulting  injuries. 

Where  excavations  are  made  in  the  highway  the  adjacent  owners 
making  them  are  liable  for  injuries  caused  thereby. 

In  Durant  v.  Palmer  (5  Dutch.  544)  there  was  an  open  area  in  front 
of  defendant's  premises  for  the  purpose  of  a  stairway  and  defendant  was 
held  liable  for  injuries  caused  by  plaintiff  falling  in  it.  (See  also  Bues- 
chingu.  St.  Louis  Gas-Light  Co.,  73  Mo.  219;  39  Am.  Rep.  503;  to  the 
same  effect  see  McGuire  v.  Spence,  91  N.  Y.  303;  42  Am.  Rep.  601, 
note.) 

Abutting  owners  are  liable  for  injuries  caused  by  defective  or  improp- 
erly kept  coal  holes  in  the  sidewalk  (Wolf  v.  Kilpatrick,  101 N.  Y.  146; 
54  Am.  Rep.  672.  See  post,  p.309,)  ;  or  a  scuttle-hole  (Calder  v.  Smalley, 
66  la.  219;  65  Am.  Rep.  270);  or  a  manhole  (Wells  v.  Sibley,  9  N.  Y.  S. 
Rep.  343)  ;  or  other  openings  in  the  street  or  sidewalk. —  Smith  v.  Ryan, 
8  N.  Y.  S.  Rep.  853;  Hughes  v.  Orange  Co.  M.  Assoc,  56  Hun,  396 ;  10  N. 
Y.  S.  Rep.  252;  Brezel  v.  Powers,  (  Mich.  ),  45  N,  W.  Rep.  130; 
Crawford  v.  Wilson  &  B.  Mfg.  Co.,  28  N.  Y.  S.  Rep.  514;  8  Misc.  Rep.  48. 

In  Crogan  v,  Schiele  (53  Conn.  186 ;  55  Am.  Rep.  88 ;  33  Alb.  Law  Jour. 
110),  A.  owned  a  factory  standing  back  about  ten  feet  from  the  line  of 


DAMAUK  m   run:.  83 

his  land,  or  uses  there  ii  thing  of  ii  dungerous  nature  for  his 
own  advantage  (ni)  he  must  keep  it  in  at  his  own  peril,  and 
that  he  is  liable  for  the  conse(juenoes  if  it  escapes  and 
injures  his  neighbor  without  any  negligence  being  alleged, 
l)as  been  fully  established  (>t).  Such  cases  are,  therefore, 
outside  of  the  scope  of  the  present  work,  when  it  has  once 
been  deterniiuo^l  that  the  thing  kept  is  so  dangerous  as  to 
come  within  the  rule.  The  question,  what  is  a  dangerous 
thing?  must  be  one  for  the  jury.  Whether  the  thing  is 
siiflSciently  dangerous  to  be  a  nuisance  and  to  be  kci)t  at  a 
man's  peril  must  depend  on  the  locality',  the  quantity,  and 
the  surrounding  circumstances  (o),  and  I  am  not  aware  of 
any  case  which  has  decided  that  setting  lire  to  weeds  or 
agricultural  })roduce  comes  within  the  rule.  In  the  case  of 
sparks  from  railway  engines,  it  has  been  held  that  a  railway 
com[)any  are  liable  at  common  hiw  if  they  do  not  prevent 
their  sparks  from  doing  injury,  and  the  legislature  has 
interfered  to  protect  the  use;  and  the  users  of  such  engines 

(m)  Anderson  v.  Oppenheimer,  post.  Amer.  Rep.  654  (gunpowder  in  adjoining 

(h)  Jones  v.  Festinlog  Ry.  Co.,  L.  R.  3  building). —  [Hine  r.    Cushinij,  M  llun, 

Q.  IJ.  733;  37  L.  J.  li  15.  214  (sparks  from  510;  6    N.  Y.  S.  Rep.   SoO;  Van    Fleet  r. 

engine) ;  Fletdier  v.  Rylandu,  L.  R.  3  H.  New  York,  etc.,  R.  Co.,  7  N.  Y.  S.  Rep. 

L.  330;  37  L.  J.  Ex.  161  (water  in  mine).  636.] 
(o)  Ueeg  V.  LJcht,  [80  N.  Y.  579] ;  36 

the  public  pavement  and  extending  along  the  pavement  about  eiglity  feet. 
The  place  between  the  street  and  the  line  of  the  building  had  been  so 
paved  that  there  was  nothing  to  indicate  where  the  street  line  emiod ;  and 
in  front  of  the  building  he  had  erected  a  porch  through  which  entrance 
to  the  building  was  effected.  B.  who  was  not  acquainted  with  the  sur- 
roundings went  to  the  factory  after  dark  in  search  of  her  child  and  in 
trying  to  ttnd  the  door  fell  into  an  unguarded  area  and  was  severely  in- 
jured. It  was  held  that  B.  was  not  a  trespasser  and  that  A.  was  liable 
for  negligently  maintaining  an  unguarded  area. 

The  court  said  Ilowland  w.  Vincent,  10  Mete.  371,  was  discarded  as  an 
authority  in  Norwich  t?.  Breed,  30  Conn.  547;  denied  In  Beck  v.  Carter, 
68  N.  Y.  284;  adversely  criticised  In  Bigelow  on  Torts,  G8<;,  CSd,  and  pro- 
nounced in  Shearman  &  Iledfleld  on  Negligence,  §  r>49,  a  "  decision  which 
It  is  dinicult  to  justify."  Mishler  v.  O'Grady,  132  Mass.  13'.),  was  re- 
ferred to  as  being  in  accord  with  the  rule  announced  in  Norwich  v.  Breed, 
iupra. 


84    NEGLECT  OF  DUTIES  REQUIRING  ORDINARY  CARE. 

are  then  acting  in  pursuance  of  parliamentary  powers,  and 
[69]  only  liable  if  negligence  is  proved  {p).  In  Tuber- 
field  V.  Stamp  {q')  it  was  held  by  three  judges  out  of  four, 
upon  the  principle  that  every  man  must  use  his  own  prop- 
erty so  as  not  to  hurt  another,  that  a  farmer  was  liable  in  an 
action  for  negligence  for  injury  done  to  corn  in  another's 
close  by  burning  stubble,  unless  he  proved  that  a  sudden 
storm  had  risen.  Turton,  J.,  dissented,  on  the  ground  that 
such  a  doctrine  would  discourage  industry.  The  allegation 
that  he  negligenter  custodivit  was  (it  is  presumed)  proved, 
and  if  so  the  decision  seems  clearly  sound  on  that  ground ; 
but  no  doubt  it  can  be  supported  on  the  principle  stated 
in  the  text,  viz.,  that  the  defendant  was  bound  to  keep  the 
fire  on  his  own  premises.  The  American  cases,  which  will 
be  found  in  "  Shearman  on  Negligence,"  Chapter  XX., 
and  '*  Wharton  on  Negligence,"  Book  III.,  Ch.  V.,  are 
instructive  and  very  conflicting,  but  to  discuss  them  would 
take  up  too  much  space.  If  a  man  make  a  fire  in  a  field 
*'  in  a  sequestered  spot  and  on  a  quiet  day  then  there  is  no 
inculpatory  negligence,  otherwise  on  a  "windy  day,  when 
buildings  are  so  near  as  to  make  ignition  probable"  (r); 
and  in  like  manner  where  a  brewery  being  near  to  the 
plaintiS^'s  factory,  was  negligently  allowed  to  throw  off 
sparks  in  a  populous  place  it  was  held  that  the  defendant 
had  a  higher  degree  of  care  cast  upon  him  than  if  the 
brewery  had  been  built  in  the  country  or  in  a  part  of  the 
city  where  there  were  no  houses  in  its  immediate  vicin- 
ity, and   that  he  ought  to  make  himself  acquainted  with 


ip)  Vaughan  v.  Taflf  Vale  Ry.  Co.,  5  (?)  Taberfleld  v.  Stamp,  1  Salk.  13; 

H.  &  N.  685;  Brand  v.  Hammersmith  Ry.  Vaughan  v.  Menlove,  3  New  Gas.  468. 

Co.,  L.  R.  4  11.  L.  171;  Trueman  r.  L.  B.  (r)  Wharton  on  Negligence,  8.   865; 

&  S.  C.  Ry.  Co.,  25  Ch.  D.  423.    The  first  see  Filliter  v.  Phlppard,  11  Q.  B.  347.  — 

case  Is  said  by  Bramwell,  L.  J.,  to  have  [By  the  common  law,  the  owner    of  a 

been  wrongly    decided;  see  Powell  r.  building  not  exposed  in  some  particular 

Fall,  infra.    In  the  case  of  locomotives  way  to  the  danger  of  fire,  is  not  required 

under  the  Illjihway  Acts  the  owners  are  to  provide  extra  arrangements  for  the 

not  protected.    See  Powell  v.  Fall,  5  Q.  escajie   of   the  occupants.  —  Pauley   v, 

Ji.  D.  5'J7 ;  49  L.  J.  Q.  B.  428.  Steam  Gauge  &  Lantern  Co. ,  131  N.  Y. 

90;  29  N.  E.  Rep.  999;  30  N.  E.  Rep.  865.] 


RAILWAY    FIRES.  85 

the  most  scientific  ways  of  prevontin<;  the  emission  of 
sparks,  etc.  (.s).  The  prevailing  rule  in  America  seems  to 
he  that  negligence  is  a  necessary  element  in  the  action. 
[70]  It  is  obvious  that  what  may  be  very  negligent  in  a 
dry  or  stormy  country  may  bo   consistent  with  reasonable 

(«)  Gagg  V.  Vettor,  41  Ind.  228. 

Negligent  Fires. —  By  the  old  English  law  the  starter  of  a  Are  was 
liable  for  all  resulting  damages  although  guiltless  of  negligence,  unless 
he  could  show  that  the  fire  was  excited  by  some  superior  cause  which 
he  could  neither  resist  nor  control.  To  soften  the  rigor  of  this  rule 
statutes  were  passed  making  the  liability  to  depend  upon  negligence 
(6  Anne,  c.  31,  §  G7;  Amended  U  Geo.  Ill,  c.  78,  §  76).  See  Webb  v. 
R.  R.  Co.,  49  N.  Y.  420;  Scott  v.  Hale,  IG  Me.  32G.  The  text  correctly 
suggests  that  in  America  the  rule  is  that  negligence  is  a  necessary  ele- 
ment In  the  action. 

Where  the  fire  is  lawful  no  presumption  of  negligence  arises  from 
netting  it  out,  and  tlie  burden  of  proof  of  negligence  is  on  the  plaintiff. — 
Shearman  &  Redf.  on  Neg.  329;  Sturgis  v.  Robbins,  02  Me.  289. 

As  where  fires  are  set  for  clearing  land. —  Hewey  u.  Nourse,  54  Me. 
25C;  Miller  v.  Martin,  16  Mo.  508;  Dewey  v.  Leonard,  14  Miun.  153. 

Where  such  fires  are  kindled  with  requisite  care  no  liability  arises  for 
accidental  injuries  occasioned  by  their  spreading  to  other  lands. —  Catron 
V.  Nichols,  81  Mo.  80. 

It  is  otherwise  where  they  are  negligently  kept. —  Perley  v.  East.  R. 
Co.,  98  Mass.  414.  Although  plaintiff  set  a  back  fire  to  protect  his 
property.— McKenna  t7.  Baessler,  86  la.  197;  53  N.  W.  Rep.  103. 

Where  defendant  set  fire  to  grain  stubble  after  ploughing  around  his 
field  to  prevent  its  spread,  and  attempted  to  extingui>h  it,  but  failed  to 
do  so,  and  after  smouldering  for  two  days  it  burned  afresh  and  was 
driven  by  the  wind  upon  plaintiff's  property  two  miles  distant  and 
destroyed  it,  it  was  left  to  the  jury  to  determine  whether  the  injury  was 
too  remote  to  warrant  a  recovery. —  Krippner  v.  Biebel,  28  Miun.  139. 
But  where  a  fire  spreads  from  defendant's  right  of  way  to  plaintiff's 
premises  where  plaintiff's  cattle  wander  into  it  and  are  burned,  the 
injury  is  the  proximate  result  of  the  escape  of  the  fire  and  defendant  is 
liable.— Chicago,  St.  L.  &  P.  R.  Co.  v.  Barnes,  2  Ind.  App.  213;  28  N.  E. 
Rep.  328.     See  Firks,  ante,  p.  45. 

In  some  of  the  States,  on  account  of  the  danger  attending  the  spread 
of  fires  in  prairie  and  wood  lands,  laws  have  been  passed  prohibiting  the 
setting  out  of  such  fires  under  certain  restrictions —  1  Thonip.  Neg.,  p. 
150,  citing  statutes  of  North  Carolina,  Missouri,  Illinois,  Iowa  and  Con- 
necticut. 

A  different  rule  is  applicable  to  railroad  companies.     The  setting  out 


86        NEGLECT   OF    DUTIES    REQUIRING    ORDINARY   CARE. 

care  in  [71]  a  humid  and  mild  climate.  In  Smith  v. 
South    Western    Railway    Company    (an    English    case), 

of  fires  by  railroad  companies  is  prima  facie  negligence.  But  when 
authorized  by  statute  to  propel  cars  by  steam,  and  every  reasonable  pre- 
caution is  taken  to  prevent  the  escape  of  fire,  railroad  companies  will  not, 
in  the  absence  of  negligence,  be  responsible  for  consequent  injuries. — 
Phila.,  etc.jR.  Co.  v.  Heudrickson,  80  Pa.  St.  182;  Kenney  «.  Hannibal, 
etc.,  R.  Co.,  80  Mo.  573;  Atchison,  etc.,  R.  Co.,  31  Kan.  622;  White  v, 
Chicago,  etc.,  Ry.  Co.,  1  S.  D.  326;  47  N.  W.  Rep.  146;  Gowen  v.  Glaser, 
(Pa.),  10  Atl.  Rep.  417. 

In  several  of  the  States  absolute  responsibility  is  imposed  by  statute 
upon  railroads  for  fires  set  by  their  locomotives.  See  such  statutes  con- 
strued in  Mathews  v.  St.  Louis  &  S.  F.  Ry.,  121  Mo.  298;  24  S.  W.  Rep. 
591;  Hunter  V.  Columbia,  N.  &L.  R.  Co.,  41  S.  C  86;  19  S.  E.  Rep.  197;^ 
Martin  v.  New  York  &  N.  E.  R.  Co.,  62  Conn.  331 ;  25  Atl.  Rep.  239; 
Louisville,  N.  O.  &  T.  Ry.  Co,  v.  Natchez,  67  Miss.  399;  7  So,   Rep.  350. 

Railroad  companies  must  adopt  the  best  approved  appliances  in 
known  use  to  prevent  the  setting  out  of  fires. —  Bright  Hope  R.  Co.  v. 
Rogers,  76  Va.  443 ;  Hoff  v.  West  Jersey  R.  Co.,  45  N,  J.  L,  201 ;  Jennings 
V.  Pennsylvania  R.  Co.,  93  Pa.  St.  337;  Chicago,  etc.,  R.  Co,  v.  Pennell, 
94  HI.  414;  Kurz  &  Huttenlocher  Ice  Co.  v.  Milwaukee  &  N.  R.  Co.,  84 
Wis.  171 ;  53  N.  W,  Rep.  850;  Cincinnati,  I.  St.  L.  &  C.  Ry.  Co.  v.  Smock, 
133  Ind.  411;  33  N.  E,  Rep,  108;  Hagen  v.  Chicago,  etc,  R,  Co.,  86  Mich, 
615;  49  N.  W.  Rep.  509;  Henderson,  Hull  &  Co.  v.  Phila.  &  R.  Co.,  144 
Pa,  St.  461 ;  22  Atl.  Rep.  851 ;  28  W,  N,  C.  479 ;  Chicago,  E ,  &  I.  R.  Co.  «. 
Goyette,  32  111.  App,  574,  affirmed  in  24  N.  E.  Rep.  549;  Mills  v.  Chicago, 
etc.,  Ry,  Co,,  76  Wis.  422;  45  N.  W.  Rep.  225;  Chicago  &  A.  R.  Co.  u. 
Hunt,  24  111.  App.  644;  Metzer  v.  Chicago,  etc.,  Ry.  Co.,  76  la,  387;  41  N. 
W.  Rep.  49. 

Failure  to  use  a  spark  arrester  has  been  held  negligence, —  Beddell  v. 
Long  Island  R.  Co.,  44  N,  Y,  367,  See  Lawton  v.  Giles,  90 N.  C,  374;  and 
using  a  detective  one. —  Louisville,  etc.,  R.  Co.  v.  Richardson,  66  Ind.  43; 
Eddy  V.  Lafayette,  49  Fed,  Rep.  807;  4  U,  S.  App.  247;  1  C.  C,  A.  441; 
Missouri  Pac,  Ry.  Co,  v.  Bartlett,  81  Tex,  42;  16  S.  W.  Rep,  638;  Ryan 
«.  Gross,68Md.377;  12  Atl,  Rep,  115;  16  Atl.  Rep.  302;  Flinn  w.New  York, 
etc.,  R,  Co.,  142  N.  Y.  11;  36  N,  E.  Rep,  1046;  Missouri  Pac.  Ry.  Co, ».. 
Texas  &  P,  Ry.  Co.,  41  Fed,  Rep,  817.  Or  one  adapted  to  burning  coaL 
on  an  engine  burning  wood. —  St.  Joseph,  etc.,  R,  Co,  v.  Chase,  11  Kan. 
47;  Chicago,  etc,  R,  Co.  v.  Qaintance,  58  111,  389;  Chicago  &  E.  I.  R. 
Co.  V.  Ostrander,  111  Ind,  259;  19  N,  E.  Rep,  110, 

In  Hoff  «.  West  Jersey  R.  Co.  (45  N.  J.  L.  201),  it  was  held  that  if  a  rail- 
road company  use  a  spark  arrester  of  an  approved  pattern  in  general  use 
and  which  upon  inspection  by  a  skillful  mechanic  appears  to  be  in  good 
condition,  the  company  will  not  be  liable  for  damages  done  by  sparks- 
thrown  out  by  it.     The  court  say:  "  There  is  no  breach  of  duty  on  the 


KAIL  WAY   FIRES.  87 

ante,  Cli.  I.     [72]     wbeic    the    tire    extended    from  the 
railway  lino    across    a    hedge    and    stubblo    field    to    the 


part  of  the  company,  If  in  the  choice  of  sucli  instrument  as  the  one  in 
question,  it  selects  one  wliicli  is  in  common  use  and  wliicii  lias  l)een 
approved  by  experience,  altiiougli  it  may  appear  tiiat  tiiere  is  some  new 
invention  wiiich  liad  been  but  partly  tried  in  practice,  and  which  it  may 
be,  will  siipt-rsede  the  contrivance  adopted." 

In  Bright  Hope  Ry.  Co.  v.  Rogers  (76  Va.  443),  the  court  say:  "  Em- 
ploylns  so  dangerous  an  agency  as  steam,  a  railway  company  is  liable  for 
all  injuries  caused  by  its  omission  to  employ  the  best  mechanical  con- 
trivances and  inventions  in  linown  use  to  prevent  the  burning  of  private 
property." 

A  railroad  company  must  not  permit  combustible  matter  to  accumulate 
near  its  tracli.  It  is  not  negligence  per  se,  however,  for  a  railroad  com- 
pany to  permit  dry  grass  and  vegetation  to  remain  on  its  right  of  way. 
That  is  a  fact  from  which  negligence  may  be  inferred. —  Gibbons  v.  Wis- 
consin Valley  R.  Co.,  58  Wis.  335;  Bright  Hope  R.  Co.  v.  Rogers,  70  Va. 
443;  Whiter.  Missouri  Pacific  R.  Co.,  31  Kan.  280;  Clarlveu.  Chicago,  etc., 
R.  Co.,  38  Minn.  455;  20  Rep.  148;  Jones  v.  Michigan  Cent.  R.  Co.,  59 
Mich.  437;  2G  N.  W.  Rep.*  662;  Texas  &  P.  Ry.  Co.  v.  Gaines,  (Tex. 
Civ.  App.),  26  S.  W.  Rep.  433;  St.  Johns  &  H.  R.  Co.  w.  Ransom,  33 
Fla.  40G;  14  So.  Rep.  892;  Genung  u.  New  Yorlc,  etc.,  R.  Co.,  66  Ilun, 
632;  21  N.  Y.  S.  Rep.  97;  Chicago,  M.  P.,  M.  &  O.  Ry.  Co.  v.  Gilbert,  52 
Fed.  Rep.  711 ;  3  C.  C.  A.  264;  10  U.  S.  App.  375;  Martin  v.  New  York, 
etc.,  Ry.  Co.,  62  Hun,  181;  16  N.  Y.  S.  Rep.  499;  St.  Louis  &  S.  F.  Ry. 
Co.  tj.  Richardson,  28  Pac.  Rep.  183;  47  Kan.  517;  Billings  v.  Fitchburg 
R.  Co.,  58  Hun,  605;  11  N.  Y.  S.  Rep.  837;  Moore  v.  Chicago,  etc.,  Ry. 
Co.,  78  Wis.  120;  47  N.  W.  Rep.  273;  Gram  v.  Northern  Pac.  R.  Co.,  1  N. 
D.  252;  46  N.  W.  Rep.  972;  Lake  Erie  &  W.  R.  Co.  v.  Cruzen,  29  HI.  App. 
212;  Kelsey  v.  Chicago,  etc.,  Ry.  Co.,  1  S.  D.  80;  45  N.  W.  Rep.  204; 
Rost  V.  Missouri  P.  Ry.  Co.,  76  Tex.  168;  12  S.  W.  Rep.  1131 ;  O'Neill  v. 
New  York,  O.  &  W.  Ry.  Co.,  45  Iliin,  458;  Diamond  v.  Northern  Pac.  R. 
Co.,  6  Mont.  580;  13  Pac.  Rep.  367;  Indiana,  B.  &  W.  Ry.  Co.  v.  Over- 
man, 119  Ind.  538;  10  N.  E.  Rep.  575.  Held  negligence  per  se  in  Gulf,  C. 
&  S.  F.  Ry.  Co.  V.  Rowland  (Tex.  Civ.  App.),  23  S.  W.  Rep.  421. 

Burden  of  Proof. —  In  some  States  where  dre  is  communicated  by 
sparks  from  a  locomotive  to  adjacent  lands,  a  presumption  of  negligence 
arises,  and  the  burden  of  proof  is  on  the  company  to  show  that  all  reason- 
able precautions  were  taken  to  avoid  injury. —  Kinney  v.  Hannibal,  etc., 
R.  Co.,  70  Mo.  243;  Sappington  v.  Missouri  Pacidc  R.  Co.,  14  Mo.  App. 
86;  Simpson  v.  Tenn.,  etc.,  R.  Co.,  5  Lea,  456;  Spaulding  u.  Chicago, 
etc.,  R.  Co.,  .33  Wis.  582;  Lougabaugh  v.  Virginia  City  R.  Co.,  9  Nev. 
271;  Burlington,  etc.,  R.  Co.  v.  Westover,  4  Neb.  268;  Union  Pac.  Ry. 
Co.  V.  Keller,  36  Neb.  189;  54  N.  W.  Rep.  420;  Wabash  R  Co.  v.  Smith, 
42  111.   App.  527;  Polhaus  v.  Atchison,  etc.,  R.  Co.,  4  5  Mo.  App.  153; 


bb        NEGLECT   OF   DUTIES   REQUIRING   ORDINARY    CARE. 

plaintiflF's  cottage,  the  court  [73]  said  that  the  railway 
company  having  been  negligent  in  leaving  cut  grass  upon 

Johnson  v.  Northern  Pac.  R.  Co.,  I  N.  D.  354  ;  48  N,  W.  Rep.  227;  Green 
Ridge  R.  Co.  v.  Brinkman,  64  Md.  52;  20  Atl.  Rep.  1024;  Louisville  &  N. 
R.  Co.  V.  Reese,  85  Ala.  497;  5  So.  Rep.  283;  Tilley  v.  St.  Louis  &  S.  F. 
Ry.  Co.,  49  Ark.  535;  6  S.  W.  Rep.  8;  Engle  v.  Chicago,  etc.,  Ry.  Co.,  77 
la.  661;   37  N.  W.  Rep.  6. 

In  others,  this  presumption  is  established  by  statute. —  Babcock  v. 
Chicago  &  Northwestern  R.  Co.,  62  la.  593;  Karsen  v.  Milwaukee,  etc., 
R.  Co.,  29  Minn.  12;  Delaware,  etc.,  R.  Co.  v.  Salmon,  39  N.  J.  L.  299; 
Cleveland  v.  Grand  Trunk  R.  Co.,  42  Vt.  449;  Baltimore,  etc.,  R.  Co.  v. 
Dorsey,  37  Md.  19;  Chicago,  etc.,  R.  Co.  v.  McCahill,  56  111.28;  East 
Tenn.,  V.  &  G.  Ry.  Co.  v.  Hesters,  90  Ga.  11;  15  S.  E.  Rep.  828;  Denver, 
T.  &  G.  R.  Co.  V.  DeGraff,  2  Colo.  App.  42;  29  Pac.  Rep.  664 ;  Union  Pac. 
Ey.  Co.  V.  Arthur,  2  Colo.  App.  159;  29  Pac.  Rep.  1031;  Chicago  &  E.  I. 
R.  Co.  V.  Goyette,  133  111.  21;  24  N.  E.  Rep.  549;  Laird  v.  Railroad,  62  N. 
H.  254. 

Evidence. —  The  fact  that  after  the  passage  of  a  train  dry  grass  and 
other  combustible  materials  were  discovered  burning  along  the  line  of 
the  road,  is  not  of  itself  evidence  of  negligence  on  the  part  of  the  com- 
pany.—  Reading,  etc.,  R.  Co.  v.  Latshaw,  93  Pa.  St.  449. 

But  it  is  sufficient  to  warrant  the  submission  of  the  issue  to  the  jury. — 
Kinney  v.  Hannibal,  etc.,  R.  Co.,  80  Mo.  573. 

Where  fire  was  started  in  the  grass  along  the  right  of  way  a  few  min- 
utes after  an  engine  had  passed,  and  it  was  shown  that  no  person  and 
that  no  fire  was  in  the  vicinity  at  the  time,  it  was  held  that  this  was  suffi- 
cient to  justify  the  jury  in  finding  that  the  fire  was  scattered  or  thrown 
from  the  engine. —  Karsen  v.  Milwaukee,  etc.,  R.  Co.,  29  Minn.  12.  See 
San  Antonio  &  A.  P.  Ry.  Co.  v.  Oakes  (Tex.  Civ.  App."),  26  S.  W.  Rep. 
1116. 

Where  awooden  powder  mill,  painted  over  with  fire-proof  paint,  with- 
out openings  on  the  side  next  to  a  railroad  track  about  200  yards  distant, 
exploded  while  enveloped  in  an  extraordinary  cloud  of  smoke  blown  from 
a  passing  train,  and  injured  plaintiff,  it  was  held  by  a  divided  court  that 
there  was  evidence  to  support  the  finding  of  the  jury  that  the  explosion 
was  caused  by  sparks  from  the  train. —  Babcock  v.  Fitchburg  R.  Co., 
140  N.  Y.  308;  35  N.  E.  Rep.  596;  affirming  22  N.  Y.  S.  Rep.  449. 

Though  evidence  of  a  single  fire  by  a  passing  engine  can  not  be  suffi- 
cient to  warrant  a  finding  of  negligence,  yet  when  it  appears  that  at  or 
about  the  same  time  several  fires  are  by  the  same  engine  thus  caused, 
and  that  only  about  that  time  were  any  fires  caused  by  such  engine,  and 
that  an  engine  in  good  order  and  properly  managed  ordinarily  causes 
fires,  the  jury  is  justified  in  finding  negligence. —  Missouri  Pacific  R.  Co. 
V.  Kincaid,  29  Kan.  654. 

Jiat  where  in  an  action  for  damage  caused  by  fire  alleged  to  have  been 


RAILWAY   FIRES.  89 

the  banlc  in  dry  weather,  were     [74]     answerable  for  all 
the  consequeuces.     The  company  were  authorized  to  run 


set  out  by  an  cugiue,  there  is  no  evidence  that  the  Are  was  caused  by 
any  other  than  one  of  two  engines,  evidence  as  to  other  fires  along  the 
same  line  of  road  caused  by  locomotives  other  than  the  two  In  question  is 
Inadmissible.—  Gibbons  v.  The  Wisconsin  Valley  K.  Co.,  68  Wis.  335. 
But  the  majority  of  the  decisions  are  to  the  contrary,  as  to  princi- 
ple.—Gulf,  C.  &  S.  F.  Ry.  Co  ».  Johnson,  54  Fed.  Rep.  474; 
Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v.  Gilbert,  52  Fed.  Rep.  711 ;  3  C.  C.  A. 
24J4;  10  U.  S.  App.  375;  Northern  I'ac.  R.  Co.  v.  Lewis,  51  Fed.  Rep.  C58; 
2  C.  C.  A.  446;  7  U.  S.  App.  254;  Smith  v.  Chicago,  etc.,  Ry.  Co.,  4  S. 
D.  71;  65  N.  W.  Rep.  717;  Koontz  v.  Oregon  Ry.  &  Nav.  Co.,  20  Ore.  3; 
23  Pac.  Rop.  820. 

Contributory  Negligence.  —  The  owner  of  land  contiguous  to  a  rail- 
road track  is  not  obliged  to  keep  his  land  clear  of  combustible  matter.  — 
Delaware,  etc.,  Co.  v.  Salmon,  39  N.  J.  L.  2'J9;  23  Am.  Rep.  214;  Salmon 
V.  Delaware,  etc.,  R.  Co.,  38  N.  J.  L.  5;  Phila.,  etc.,  R.  Co.  v.  Schultz, 
93  Pa.  St.  341;  Pittsburgh,  etc.,  R.  Co.  v.  Jones,  86  Ind.  4'J6;  Palmer  v. 
Missouri  Pacific  R.  Co.,  76  Mo.  217;  Richmond,  etc.,  R.  Co.  v.  Medley, 
75  Va.  4lt9;  40  Am.  Rep,  734;  Jones  v.  Michigan,  etc.,  R.  Co.,  59  Mich. 
437;  citing  Smith  v.  London  &  S.  W.  Ry.  Co.,  L.  R.  5  C.  P.  98;  L.  R. 
6  C.  P.  14;  Bass  v.  Chicago,  B.  &  Q.  R.  Co.,  28  111.9;  Illinois  Cent.  R. 
Co.  r.  Frazler,  64  Id.  28;  Rockfonl,  R.  L  &.  St.  L.  R.  Co.  v.  Rogers,  62 
Id.  346;  Salmon  v.  Delaware,  L.  &  R.  Co.,  38  N.  J.  L.  5;  Same  v.  Same, 
3D  Id.  299;  Richmond  &  D.  R.  Co.  v.  Medley,  40  Am.  Rep.  734;  Flynn 
p.  San  Francisco  &  S.  J.  R.  Co.,  6  Id.  595,  and  note;  Webb  v.  Rome,  W. 
&  0.  R.  Co.,  49  N.  y.  420;  Kellogg  v.  Chicago  &  N.  W.  R.  Co.,  26  Wis. 
223;  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Jones,  44  Am.  Rep.  334,  and 
note;  Henry  v.  Southern  Pac.  R.,  50  Cal.  176;  Perry  v.  Southern  Pac. 
R.,  Id.  578;  2  Rorer  R.  R.  7'J2;  Cooley  Torts  (2d  ed.),  704;  1  Add.  Torts, 
p.  356^  p.  368;  Piggot  v.  Ea-^tern  Couuties  Ry.  Co.,  3  C.  B.  229;  Vaughau 
r.  Taff  Vale  Ry.  Co.,  6  Hurl.  &  N.  679;  Flynn  v.  San  Francisco  &  S.  J.  R. 
Co.,  40  Cal.  18;  Cook  v.  Charaplain  Transp.  Co.,  1  Den.  91;  Philadelphia 
&  R.  R.  Co.  t?.  Hendrickson,  80  Pa.  St.  182;  llewey  v.  Nourse,  54  Me.  256; 
Barnard  v.  Poor,  21  Pick.  378;  Hart  v.  Western  R.  Co.,  13  Mete.  99; 
Uooksett  V.  Concord  R.  Co.,  38  N.  H.  242;  Cleveland  v.  Grand  Trunk  Ry. 
Co.,  42  Vt.  449;  Chicago  &  E.  R.  Co.  v.  Kern,  9  lud.  App.  505;  36  N.  E. 
Hep.  381  ;  Gulf,  C.  &  S.  I'.  Ry.  Co.  t;.  Johnson,  54  Fed.  Rep.  474;  Chicago 
&  E.  R.  Co.  V.  Smith,  0  Ind.  App.  262;  33  N.  E.  Rep.  241;  Cincinnati, 
N.  0.  &  T.  P.  Ry.  Co.  v.  Barker,  94  Ky.  71;  21  S.  W.  Rep.  347;  Louis- 
ville, N.  A.  &  C.  Ry.  Co.  v.  Hart,  119  Ind.  273;  21  N.  E.  Rep.  753. 

The  negligent  failure  to  remove  or  destroy  such  dangerous  combustible 
matter  is  always  a  question  for  the  jury.  When  it  is  made  to  appear  by 
the  plaintiff's  testimony  that  the  Are  originated  from  either  of  the  causes 


90        NEGLECT   OF   DUTIES   REQUIRING   ORDINARY   CARE. 

engines  and  therefore  to  emit  sparks,  and  were  not  liable 
except  for  negligence  (i~).  The  question  of  remoteness  of 
damage  is  treated  of  ante,  Ch.  I. 

(t)  See  the  .judgment  of  Blackburn,  J.,  L.  R.  C.  P.,  pp.  21,  22. 

mentioned  in  the  statute,  the  burden  is  then  cast  upon  the  company,  to 
show  itself  free  from  negligence  in  the  matter. 

Instances. — In  the  following  cases  the  facts  have  been  held  not 
sufficient  to  constitute  contributory  negligence :  — 

Piling  cord  wood  near  the  track  of  a  railroad  under  a  contract  express 
or  implied  with  the  company. — P.  C.  St.  L.  R.  Co.  v.  Noel,  77  Ind.  110. 
Leaving  a  pane  of  glass  out  of  a  window  in  a  house  near  the  track.  — 
Martin  v.  Western,  etc.,  R.  Co.,  23  Wis.  433.  Leaving  a  window  open. — 
Louisville,  etc.,  R.  Co.  v.  Richardson,  66  Ind.  43.  Leaving  the  doors  of 
an  unfinished  building  open,  though  the  floor  is  covered  with  shavings.  — 
Fero  V.  Buffalo,  etc.,  R.  Co.,  22  N.  Y.  209.  Suffering  a  roof  of  a  build- 
ing near  the  track  to  get  in  such  a  condition  that  sparks  could  be 
blown  through.  —  Phila.,  etc.,  R.  Co.  v.  Hendrickson,  80  Pa.  St.  183. 
Omitting  or  refusing  to  plow  a  fire  guard  around  hay  stacks,  when  the 
distance  is  a  reasonably  safe  one. —  Union  Pac.  Ry.  v.  Arthur,  2  Colo. 
App.  159;  29  Pac.  Rep.  1031;  Hoffman  v.  Chicago,  etc.,  Ry.  Co.,  40  Minn. 
60;  41  N.  W.  Rep.  301. 

Placing  on  defendant's  premises  posts  which  are  burned  by  defendant's 
negligent  fire.— Gulf,  C.  &  S.  F.  Ry.  v.  McGean,  74  Tex.  616;  12  S.  W. 
Rep.  843. 

Where  plaintiff's  building,  situated  at  a  reasonable  distance  from  a 
railroad  track,  was  set  on  fire  by  a  building  subsequently  erected  in  dan- 
gerous proximity  to  the  track,  he  was  held  not  guilty  of  contributory 
negligence. —  Toledo,  etc.,  R.  Co.  v.  Maxfield,  72  111.  95. 

While  one  has  a  right  to  erect  a  building  near  a  railroad  track  and  in 
an  exposed  position,  yet  if  he  does  so,  he  is  bound  to  a  higher  degree  of 
care  in  providing  means  to  protect  his  property  from  fire  than  a  person 
in  a  less  exposed  position. —  Chicago  &  Alton  R.  Co.  v.  Pennell,  94  111. 
448;  110  111.  435.  But  contributory  negligence  cannot  be  predicated 
of  the  erection  in  a  customary  and  lawful  manner  of  buildings  con- 
structed of  the  usual  material  upon  the  owner's  premises,  even  though 
there  are  establishments  in  the  neighborhood  from  which  there  is  risk  of 
fire  or  damage;  and  the  owner  of  such  buildings  is  not  bound  to  incur 
the  expense  of  providing  them  with  extra  safeguards. —  Aspern  v. 
Churchill,  53  Mich.  607.  See  Jacksonville,  T.  &  K.  W.  Ry.  Co.  v.  Penn. 
L.  '^.  &  M.  Co.,  27  Fla.  157;  9  So.  Rep.  661. 

Under  statutes  giving  railroad  companies  an  insurable  interest  in  the 
property  along  the  line  of  its  road,  contributory  negligence  of  plaintiff  is 
not  a  defense. —  Rowell  v.  Railroad  Company,  57  N.  H.  132. 

But  it  has  been  held  one  is  guilty  of  contributory  negligence  in  allow- 


KAILWAV    riUKS.  «U 

Of  a  similar  character  arc  the  cases  where  a  man  phint^ 
a  poisonous  tree,  or  u>os  ii  dangerous  substance  upon  lii- 

Ing  shavings  to  accumulate  about  an  unflnished  building  near  a  railroad 
tracts. —  Coatus  v.  Missouri,  etc.,  li.  Co.,  (Jl  Mo.  38. 

Permitting  the  Avludows  of  a  warehou!-e,  stored  with  combustible 
matter,  to  remain  open  a  ndunglazed. —  GreatWestern  R.  Co.  v.  Ilaworth, 
39  111.  347. 

Permitting  the  use  of  a  locomotive  in  the  vicinity  of  a  warehouse  by 
its  owners. —  Spear  v.  Marquette,  etc.,  R.  Co.,  49  Mich.  24G. 

Allowing  a  steam  engine,  for  threshing  grain,  to  be  placed  near  stacks 
of  hay  during  a  high  wind. —  Martin  v.  Bishop,  59  Wis.  417. 

Where  one  could  easily  and  without  danger  have  saved  his  building 
from  loss  by  lire,  he  cannot  recover. — Chicago  &  Alton  R.  R.  Co.  v.  r<n- 
nell,  94  111.  448.  As  where  he  noticed  and  failed  to  extinguish  a  lire 
nicely  to  spread.— Illinois  Cent.  R.  Co.  v.  McKay,  G9  Miss.  139;  12  So. 
Rpp.  447;  Haverly  v.  State  Line  &  S.  R.  Co.,  136  Pa.  St.  60;  19  Atl.  Rep. 
1013;  26  W.  N.  C.  321;  not,  however,  where  it  is  not  shown  that  the  Ore 
could  have  been  thus  prevented.^ Sugarman  v.  Manhattan  El.  R.  Co.,  IG 
N.  Y.  S.  Rep.  533. 

But  damage  caused  by  the  negligence  of  one  party  and  increased 
through  the  negligence  of  the  plaintiff,  may  be  recovered  up  to  the  time 
when  the  contributory  negligence  began  to  affect  the  result. —  Stebbins 
r.  Central  Vt.,  etc.,  R.  Co.,  54  Vt.  464. 

It  was  left  to  the  jury  in  one  case  to  determine  whether  plaintiff  was 
guilty  of  contributory  negligence  in  stacking  hay  in  a  meadow  one 
hundred  and  fifty  or  two  hundred  yards  from  the  track  of  a  railroad, 
where  sparks  from  a  passing  engine  ignited  grass  fifty  feet  from  the  track 
and  the  fire  passed  over  to  the  hay. —  Kansas  City,  etc.,  R.  Co.  v.  Owen, 
26  Kan. 419. 

As  was  the  case  where  Are  started  from  cinders  dropped  from  an  engine 
and  ran  through  an  orchard  covered  with  old  grass  and  corn  stalks, 
destroying  the  trees  mulched  with  dry  grass  and  straw  stalks, —  The 
Missouri,  etc.,  R.  Co.  v.  Cornell,  30  Kan.  35. 

So  where  plaintiff's  barn  stood  near  the  right  of  way  of  a  railroad,  and 
Are  was  comraunicatpd  from  accumulations  of  straw  and  manure  depos- 
ited outside  and  destroyed  the  barn.— Collins  V.  N.  Y.,  etc.,  R.  Co.,  71 
N.  Y.  C09. 

And  to  accumulations  of  hay  and  shavings  between  two  buildings,  and 
under  one  of  tht-ra  which  was  set  upon  blocks  with  its  side  next  to  the 
track  and  partially  open.—  Murphy  v.  Chicago,  etc.,  R.  Co.,  45  Wis.  222. 

Defenses. —  In  an  action  to  recover  the  value  of  an  elevator  alleged  to 
have  been  burned  by  nre  communicated  to  it  from  the  building  of  another 
which  was  set  on  fire  by  sparks  from  a  locomotive  on  defendants  rail- 
road, the  contributory  negligence  of  the  one  Lrst  burning  was  held  not  to 
constitute  a  defense.—  Small  v.  Railroad,  55  la.  582. 


92        NEGLECT   OF  DUTIES   REQUIRING   ORDINARY   CARE. 

[75]     land ;   he  must,  at  his  peril,  see  that  he  does  not 
injure  his  neighbor  (w). 

The  same  principle  is  applicable  to  the  bringing  of  water 
upon  a  man's  own  land  :  he  must  keep  it  in  at  his  peril  (x), 
and  it  is  no  defense  to  say  that  there  was  no  negligence, 
nor  even  that  there  was  the  greatest  care.  The  only 
defense  which  can  be  raised  is  that  the  escape  of  the  water 
was  by  the  act  of  God,  or  vis  major  (y),  or  that  he  was 
compelled  by  Act  of  Parliament  to  keep  the  water  there, 
and  that  what  happened  was  the  inevitable  result  of  the 
performance  of  his  duty  under  the  statute  (z).  With 
respect  to  water  which  is  not  brought  by  the  owner  upon 
the  land  but  comes  or  exists  naturally  there,  he  is  liable 
for  negligence  in  the  user  of  it  (a).     So,  also,  with  respect 

(m)  Crowharst  v.  Amersham  Burial  Losee  v.  Buchanan,  51  N.  T.  476.    [The 

Board,  L.  R.  4  Ex.  D.  5 ;  48  L.  J.  Ex.  109  doctrine  of  Fletcher  v.  Rylands  Is  dlsap- 

(horse  poisoned  by  yew  trees  growing  proved  in  Marshal  v.  Wellwood,  38  N.  J. 

through  railings) ;  Firth  v.  Bowling  Iron  L.  339;  Garland  v.  Towne,  55  N.  H.  55; 

Co.,  L.  R.  3  C.  P.  Div.  254;  47  L.  J.  C.  P.  Everett  v.  Hydraulic  Flume  Co..  23  Cal. 

358;  Wilson  v.  Newberry,  L.  R.  7  Q.  B.  225 ;  Lapeham  v.  Curtis,  5  Vt.  371. 

31,  distinguished  (cow  killed  by  eating  It   is  approved   in    Shipley  v.  Fifty 

portions  of  wire   rope).     As   between  Associates,    101  Mass.    251,   Gorham  v. 

landlord    and    tenant,   see    Erskine  v.  Gross,  125   Mass.  238,  and   followed  in 

Adeane,  L.  R.  8  Ch.  App.  756 ;  42  L.  J.  Ch.  Cahil  v.  Eastman,  18  Minn.  324.] 

835;  [Brown   v.  Ilius,  27  Conn.  84;  Car-  (y)  Nichols  v.  Marsland,  L.  R.  2  Ex. 

hartv.  Auburn  Gas  light  Co., 22  Barb.297.  D.  1 ;  46  L.  J.  Ex.  174. 

See  Hess  v.  Lupton,  7  Ohio  St.  1,   216;  (s)  Dixon  v.  Metropolitan  Board  of 

Woodward  v.  Aborn,  35  Me.  271.—  [See  Works,  7  Q.  B.  D.  418. 

post.  Chap.  III.,  Sec.  IV.]  (a)  Whltehouse  v.  Birmingham  Canal 

(a-)  Fletchers.  Rylands,  swpra;  Smith  Co.,  27    L.    J.    Ex.    25;    Flrmstone  v. 

V.  Fletcher,  L.  R.7  Ex.  305;  L.  R.  2  App.  Wheeley,  13   L.  J.  Ex.  361  (removing  a 

Cas.  781;  41  L.J.  Ex.  193;  43  L.J.  Ex.  70.  natural  barrier  of  a  stream). 
This   is   not  the  law  in   America;  see 

Where  defendant  company  sets  out  a  fire  it  cannot  escape  liability  by 
showing  that  the  fire  originated  on  the  right  of  way  of  another  corpora- 
tion and  that  defendant  had  simply  a  right  by  contract  to  run  its  trains 
on  the  road. —  Slossen  «.  Railroad  Co.,  60  la.  215. 

But  where  the  injury  occurred  while  the  road  was  operated  by  trus- 
tees named  in  a  mortgage  to  secure  bondholders  and  before  the  mortgage, 
was  foreclosed,  the  trustees  were  held  not  liable. —  Stratton  v.  European, 
etc.,  R.  Co.,  74  Me.  422. 

(«)  Surface  Water.  —  The  common  law  doctrine  that  the  proprietor 
of  an  inferior  or  lower  tenement  may  lawfully  obstruct  or  hinder  the 
natural  flow  thereon  without  incurring  liability  therefor  prevails  in  some 


BRINGING   WATER   UPON   LAND.  93 

[7G]  to  water  which  a  man  uses  in  common  with  his 
neighbors  who  equally  dcrivo  benefits  from  it  ((^).     If  he 

(,b)  Anderson  r.  Oppenhetmer,  pott. 

States. —  Little  Rock,  etc.,  Ry.  Co.  v.  Chapman,  39  Ark.  4«3;  Gihbs  v. 
Williams,  25  Kau.  2U;  Batesv.  Smith,  100  Mass.  181;  Cairo,  etc.,  R.  Co. 
r.  Stevens,  73  Iiid.  278;  38  Am,  Rep.  130;  Benthall  v.  Selfert,  77  Ind. 
202;  Abbott  w.  R.  R.  Co.,  83  Mo.  271;  20  C.  L.  J.  38  (Abst.);  Barlvloy  v. 
Wilcox,  8G  N.  Y.  140;  40  Am.  Rep.  51"J;  Buffura  w.  Harris,  6  R.  I.  243; 
Hoyt  V.  Hudson,  27  Wis.  G5U;  Kansas  City,  etc.,  R.  Co.  v.  Riley,  33  Kan. 
374;  20  C.  L.  J.  373;  Beard  v.  Murphy,  37  Vt.  104;  Hogenson  v.  St. 
Paul, etc.,  Ry.  Co.,  31  Minn.  224;  Edwards  v.  Charlotte,  etc.,  R.  Co.,  39 
S.C.  472;  18  S.  E.  Rep.  58;  Jean  v.  Pennsylvania  Co.,  9  Ind.  App.  5G;  36 
N.  C.  Rep.  159;  Chicago,  K.  &  N.  Ry.  Co.  v.  Stock,  51  Kan.  737;  33  Pac. 
Rep.  GOl;  Schneider  u.  Missouri  P.  Ry.  Co.,  29  Mo.  App.  G8;  Rowe 
V.  St.  Paul,  M.  &  M.  Ry.  Co.,  41  Minn.  384;  43  N.  W.  Rep.  7G. 

The  civil  law  doctrine  that  the  lower  of  two  adjacent  estates  must 
necessarily  be  subject  to  the  natural  flow  of  water  from  the  upper  one 
prevails  in  a  number  of  the  States. — Ludeling  v.  Stubbs,  34  La.  An.  935; 
Bowman  v.  New  Orleans,  27  La.  An.  502;  Kauffman  v.  Griesemer,  2G  Pa. 
St.  407;  Porter  v.  Durham,  74  N.  C.  769;  Ogburn  v.  Connor,  46  Cal.  347; 
13  Am.  Rep.  213;  Livingston  v.  McDonald,  21  la.  IGO;  Drake  u.  Cliicago, 
etc.,  R.  Co.,  63  la.  302;  Louisville,  etc.,  R.  Co.  v.  Hays,  11  Lea,  382; 
Jacksonville,  etc.,  R.  Co.  v.  Cox,  91  HI.  600;  Ninin^er  v.  Norwood,  72 
Ala.  277.  See  also  Butler  v.  Peck,  16  Oiiio  St.  334,  and  Tootle  v.  Clifton, 
22  Ohio  St.  247;  10  Am.  Rep.  732;  Bierer  u.  Hurst,  155  Pa.  St.  523;  26 
All.  Rep.  742;  Lei.llein  u.  Meyer,  95Mich.  58G;  55  N.  W.  Rep.  367;  Brown 
r.  Winona  &  S.  W.  Ry.  Co.,  53  Minn.  259;  55  N.  W.  Rep.  123;  Gray  v. 
McWllliaras,  98  Cal.  157;  32  Pac.  Rep.  976;  Senter  v.  Tees,  132  Pa.  St. 
216;  18  Atl.  Rep.  1114;  Sowers  v.  Lowe,  9  Atl.  Rep.  44. 

In  those  States  where  the  common  law  doctrine  prevails  a  land-owner 
Is  not  liable  for  disturbing  the  natural  drainage  of  his  neighbor's  land  in 
changing  the  grade  of  the  surface. — Bangor  v.  Lansil,  51  Me.  621; 
Goodale  v.  Tuttle,  29  N.  Y.  451;  Morrill  v.  Hurley,  120  Mass.  99;  Or- 
chard Place  Laud  Co.  v.  Bradv,  53  Kan.  420;  36  Pac.  Rep.  726. 

Or  In  erecting  structures  thereon.  —  Bates  v.  Smith,  100  Mass.  181; 
Bowlsby  V.  Speer,  2  Vroom,  351. 

These  rules  are  subject  to  qualitlcatlons.  In  States  where  the  rule  of 
the  civil  law  Is  adopted  it  seems  that  the  owner  of  city  property  may  be 
held  to  a  stricter  liability  respecting  surface  water  than  the  owner  of  aa 
estate  in  the  country.— Gould  on  Waters,  §  268. 

And  in  those  which  have  adopted  the  common-law  rule,  in  hillyregions 
barriers  may  not  be  erected  to  prevent  the  iutliix  or  outflow  of  surface 
water.— Palmer  v.  Waddell,  22  Kan.  353;   Iloyt  r.  Hudson,  27  Wis.  656. 

In  New  Hampshire  it  is  held  that  the  land-owner's  right  to  obstructor 


94        NEGLECT    OF   DUTIES    REQUIRING   ORDINARY   CARE. 

diverts  the  [77]  whole  of  any  part  of  the  water  of  a 
stream    from    its    natural  course,    he  is  responsible  abso- 

divert  surface  water  or  water  percolating  througtj  the  soil  is  limited  to 
what  is  necessary  in  the  reasonable  use  of  his  own  land. —  Swett  v.  Cutts, 
50  N.  H.  439;  Bassett  v.  Salisbury  Mfg.  Co.,  43  N.  H.  569. 

A  land-owner  has  no  right  under  either  rule  to  increase  the  flow  of 
surface  water  or  to  gather  it  in  a  body  and  discharge  it  on  his  neighbor's 
land.— Ogburn  v.  Connor,  46  Cal.  346;  18  Am.  Rep.  213;  Kelly  v.  Dun- 
ning, 39  N.  J.  Eq.  482;  Tootle  v.  Clifton,  22  Ohio  St.  247;  10  Am.  Rep. 
732;  Weis  v.  Madison,  75  Ind.  241;  Boyd  v.  Conklin,  54  Mich.  583;  24 
Am.  Law  Reg.  305;  Horton  v.  Sullivan,  97  Mich.  282;  56  N.  W.  552; 
Williamsons.  Oleson,  89  la.  —  ;  59  N.  W.  Rep.  267;  Osten  w.  Jerome, 
93  Mich.  196;  53  N.  W.  Rep.  7;  Boyton  v.  Longley,  19  Nev.  69;  6  Pac. 
Rep.  437;  Chicago  &  A.  R.  Co.  v.  Glenney,  28  111.  App.  864;  Davidheiser 
V.  Rhodes  (Pa.),  19  Atl.  Rep.  400;  25  W.  N.  C.  513;  Meyers  v.  Fritz 
(Pa.),  10  Atl.  Rep.  30. 

Municipal  Corporation. —  A  municipal  corporation  in  constructing  or 
chanjcingthe  grade  of  streets  is  not  liable  for  injuries  resulting  from  the 
flow  of  waters  naturally  collecting  thereon,  over  the  lands  of  adjacent 
proprietors. —  Hubbard  v.  "Webster,  118  Mass.  599;  Wakefield  v.  Newell, 
12  R.  I.  75;  Lynch  v.  New  York,  76  N.  Y.  60;  Alden  v.  Minneapolis,  24 
Minn.  254;  Champion  w.  Town  of  Crandon,  84  Wis.  405;  54N.  W.  Rep. 
775;  Bush  v.  City  of  Portland,  19  Ore.  45;  23  Pac.  Rep.  667. 

Nor  is  it  bound  to  provide  ditches  or  other  conduits  for  surface  water 
flowing  along  the  street  so  as  to  prevent  it  from  running  over  the  lands 
of  adjacent  owners. —  Stewart  v.  City  of  Clinton,  79  Mo.  603;  Hoyt». 
Hudson,  27  Wis.  656;  Borough  of  West  Bellevue  v.  Huddleson  (Pa  ),  16 
Atl.  Rep.  764;  23  W.  N.  C.  240;  Rutherford  v.  Village  of  Holly,  105  N.  Y. 
632;   11  N.  E.  Rep,  818. 

The  adjacent  owner  may  however  prevent  the  flow  of  wateron  his  land 
from  the  street. —  Bangor  v.  Lansil,  51  Me.  521 ;  Limerick  Co.'s  Appeal, 
80  Pa.  St.  425. 

In  Pennsylvania  it  was  held  that  a  city  constructing  a  sewer  along  the 
bed  of  a  creek  of  insufficient  capacity  to  carry  off  the  water  is  not  liable 
for  damages  caused  by  its  overflow  during  a  rain  storm,  on  the  principle 
that  a  municipality  can  not  be  made  liable  for  the  mistakes  which  mav 
be  committed  by  its  officers  in  the  honest  exercise  of  their  duties. —  Col- 
lins V.  City  of  Philadelphia,  93  Pa.  St.  272. 

It  was  left  to  the  jury  in  another  case  to  determine  whether  due  care 
was  exercised  in  the  construction  of  a  sewer  which  would  not  properly 
carry  off  surface  water  during  a  storm. — McClure  v.  City  of  Red  Wing, 
28  Minn.  186. 

A  city  as  an  individual  (Kelly  v.  Dunning,  39  N.  J.  Eq.  482;  Hogenson 
V.  St.  Paul,  etc.,  R.  Co.,  31  Minn.  224)  is  liable  for  collecting  water  in  a 
channel  and  throwing  it  upon  another's  land. —  City  of  Evansville  v. 


NEOLIGENCi:    IX    RESPECT   OF   SUtti'ACK    \N  ATEKS.  95 

lutt'l}-  without  ail}-  allegation  [78]  of  iicgligeucc  to  any 
one  entitled  to  have  the  water  flow  in  in  ltd  natural  state 

Decker,  84  Ind.  325;  Mairu  v.  Manliattan  Real  Estate  Associatioa,  89  N. 
Y.  498;  Good  v.  City  of  Altoona,  102  Pa.  St.  41)3;  29  Atl.  Kep.  741 ;  Slack 
r.  Lawrence  Tp.  (N.  J.),  19  Atl.  Rep.  G(J3;  Torrey  v.  City  of  ScraiitoD,  133 
l»a.  St.  173;  19  Atl.  Rep.  351;  liates  ».  Inhab.  of  Westborougb,  161  Mass. 
174;  23  N.  E.  Rep.  1070. 

And  if  it  collects  surface  water  in  one  place  in  a  large  body,  it  raust 
provide  for  its  escape  wittiout  injury  to  private  property  owners.— City 
of  Crawfordsville  v.  Bond,  9(5  Ind.  236.  See  City  of  Terre  Haute  v. 
Huduet,  112  Ind.  542;  13  N.  E.  Rep.  086;  Town  of  Sullivan  t?.  Pliillips, 
lie  Ind.  320;  11  N.E.  Rep.  300;  Pye  v.  City  of  Mankato,  36  Minn.  373; 
31  N.  W.  Rep.  863 ;  Rice  v.  City  of  Flint,  G7  Mich.  401 ;  34  N.  W.  Rep.  719. 

A  city  has  been  held  liable  for  failure  to  keep  its  sewers  in  repairs 
whereby  surface  water  was  diverted  into  a  neighborinn  cellar. —  Taylor 
r.  City  of  Au-itin,  32  Miun.  247.  See  City  of  Denver  v.  Rhodes,  9  Colo. 
554;  13  Pac.  Rep.  729. 

While  a  city  is  bound  to  keep  its  canals  in  repair  and  protect  adjacent 
proprietors  aijainst  damage  by  overflow  it  is  not  bound  to  provide  against 
extraordinary  rainfalls. —  City  of  Evansville  v.  Decker,  84  Ind.  325. 

Where  the  proximate  cause  of  the  overflow  of  a  canal  was  the  failure 
of  the  city  to  keep  it  clear  of  obstructions,  the  existence  of  an  extraor- 
dinary rainfall  was  held  not  to  relieve  it  from  liability  for  resulting  in- 
juries.—  The  Mayor,  etc.,  of  Savannah  v.  Cleary,  67  Ga.  153. 

Railroad  Companies. —  Under  the  common-law  rule,  railroad  corpo- 
rations are  not  liable  for  the  obstruction  or  diversion  of  the  natural  flow 
of  surface  waters  by  their  road-beds. —  Walker  v.  Old  Colony  R.  Co.,  103 
Mass.  10;  O'Connor  v.  Fond  du  Lac  R.  Co.,  52  Wis.  526;  Morrison  v. 
Bucksport  R.  Co.,  67  Me.  353;  Raleigh  R.  Co.  v.  Wicker,  74  N.  C.  220; 
Mayer  v.  New  York  Cent.,  etc.,  R.  Co. ,  88  N.  Y.  351 ;  Cairo,  etc.,  R.  Co. 
c.  Stevens,  73  Ind.  278;  38  Am.  Rep.  139;  Ataton  v.  Norfolk  &  C.  R.  Co., 
109  N.  C.  337;  13  S.  E.  Rep.  933;  Morissey  v.  Chicago,  etc.,  R.  Co.,  38 
Neb.  406;  56  N.  W.  Rep.  949;  57  N.  W.  Rep.  552;  Missouri  Pac.  Ry.  Co. 
r.  Renfro,  52  Kan.  237;  34  Pac.  Rep.  802;  Jordan  v.  St.  Paul,  M.  &  M. 
Ry.  Co.,  42  Minn.  172;  43  N.  W.  Rep.  849. 

Under  tlie  civil  law  rule  a  liability  arises. —  Carriger  v.  East  Tennes- 
see, etc.,  R.  Co.,  7  Lea,  388;  Little  Rock,  etc.,  R.  Co.  v.  Chapman,  39  Ark. 
4ii3j  Drake  v.  Chicago,  etc.,  R.  Co.,  63  la.  302;  Louisville,  etc.,  Co.  v. 
Hays,  11  Lea,  382;  Fick  v.  Pennsylvani  R.  Co.,  157  Pa.  St.  622;  27  Atl. 
Rep.  783;  Knight  v.  Albemarle  &  R.  Co.,  Ill  N.  C.  80;  15  S.  E.  Rep. 
1>29;  Noe  v.  Chicago,  B.  &  Q.  Ry.  Co..  70  la.  360;  41  N.  W.  Rep.  42;  Fre- 
mont, E.  &.  M.  V.  R.  Co.  V.  Marley,  25  Neb.  138;  40  N.  W.  Rep.  948. 

But  a  railroad  company  has  no  right  by  the  erection  of  embankments, 
bridges,  etc.,  to  discharge  unusual  quantities  of  surface  water  upon 
adjoining  lands.— Jacksonville,  etc.,  R.  Co.  v.  Cos,  91  111.  500;  Curtis 


96        NEGLECT   OF   DUTIES    REQUIRING   ORDINARY   CARE. 

(c),tunless  he  is  entitled  by  some  grant  or  prescription  to 
interfere  with  the  natural  flow  of  the  stream  {d). 

In  no  part  of  this  treatise  is  it  more  necessary  to  observe 
the  rule  already  laid  down  (e)  that  negligence  only  arises 
where  the  rights  are  equal,  than  in  the  subject  we  are  now 


(c)  Woodv.  Wand,  3Exch.748;  Dick-  Toungv.  Bankler  D.Co.  (1893),  App.  Cas. 
Inson  V.  Grand  Junction  Canal  Co.,  7  691;  Dean  ?;.  Benn,  69Hnn,  519;  23  N.  Y. 
Exch.  299,  and  many  other  cases.  S.  Rep.  708;  Alcorn?;.  Sadler,  66  Miss. 221; 
Shearman,  p.  659.  Terry  v.  Smith,  47  Hun,  333;   Keyar  v. 

(d)  Bealey  v.  Shaw,  6  East,  214;  Ac-  Covell,  62  N.  H.  283;  Martin  v.  Gleason, 
ton  V.  Blundell,  12  M.  &  W.  353.  —  [In  139  Mass.  183;  29  N.  E.  Eep.  664;  Chauvet 
America  the  common  law  rule  prevails  v.  Hill,  93  Cal.  407;  28  Pac.  Rep.  1066; 
where  the  time  has  not  been  shortened  Masonic  Temple  Assoc,  v.  Harris  CMe.}, 
by    statute.  —  Gallagher    v.    Montecito  19  At.  Rep,  937.] 

Val.  Water  Co.  (Cal,),  35  Pac,  Rep.  770;  (e)  Ante,  p.  5. 


V.  Eastern  R.  Co.,  98  Mass.  428;  McCormick  v.  Kansas  City,  etc.,  R. 
Co.,  70  Mo.  359;  Drake  v.  New  York,  etc.  Ry,,  75  Hun,  422;  27  N,  Y. 
S.  Rep.  739;  St.  Louis,  A.  &  T.  H.  R.  Co.  v.  Winkelmann,  47  111.  276; 
Ohio  &  M,  Ry.  Co.  v.  Thillman,  143  111.  127;  32  N.  E.  529;  O'Connell 
V.  East  Tenn.,  V.  &  G.  Ry.  Co.,  87  Ga.  246;  13  S,  E.  Rep.  489;  Kan- 
sas City,  Ft.  S.  &  M.  R,  Co.  u.  Cook,  57  Ark.  387;  21  S,  W.  Rep.  1066. 

If  a  railroad  company  exercises  due  care  and  skill  in  making  neces- 
sary embankments,  culverts  and  ditches,  such  obstruction  and  discharge 
is  damnum  absque  injuria. —  Benson  w.  Chicago  &  Alton  R,  Co,,  78  Mo. 
504.  The  latest  authority  in  this  State  follov^s  the  common-law  rule. — 
Abbott  v.R.  Co.,  83  Mo.  271.  See  Gulf,  C,  &  S.  F.  Ry.  Co.  v.  Steele, 
(Tex.  Civ.  App.);  26  S.  W.  Rep.  926;  Collier  v.  Chicago  &  A.  R.  Co., 
48  Mo.  App.  398. 

But  it  is  liable  for  injuries  to  lands  from  the  defective  or  improper 
construction  of  its  road  causing  their  overflow, —  Bourdier  v.  Morgan's 
etc.,  R.  Co.,  35  La.  An.  947;  Gulf,  Colorado,  etc.,  R.  Co.,  59  Tex.  128; 
Adams  V.  Durham  &  N.  R.  Co.,  IION.C.  325;  14  S.E.Rep.  857;  George 
V.  Wabash  W.  Ry.  Co.,  40  Mo.  App.  433 ;  Sinai  v.  Louisville,  etc.,  Ry,  Co., 
71  Miss.  547;  14  So,  Rep.  87;  Kankakee  &  S.  R.  Co.  v.  Horan,  131  111. 
288;  23  N.  E.  Rep.  621. 

Under  no  rule  of  law  is  a  railroad  company  liable  for  damages  caused 
by  unusual  overflows  which  could  not  have  been  anticipated  and 
guarded  against  by  the  exercise  of  reasonable  foresight  and  skill. — 
Gulf,  C.  &  S,  F.  Ry.  v.  Dunlap  (Tex.  Civ.  App.),  26  S.  W.  Rep.  665; 
Central  Trust  Co,  v,  Wabash,  etc.,  Ry,  Co.,  57  Fed.  Rep.  44;  Peoria 
&  P.  U.  Ry.  Co.  V.  Barton,  38  111,  App.  469.  This  is  a  proper  question 
for  the  jury, —  "Van  Duzer  v.  Elraira,  etc.,  R.  Co.,  75  Hun,  487;  27  N. 
Y,  S.  Rep.  474;  Sentman  »,  Baltimore  &  O.  R.  Co.,  78  Md.  222;  27  Atl. 
Rep.  1074. 


WATER  —  DIVERSION POLLUTION.  97 

about  to  consider,  viz.,  the  duties  of  tiio  owners  of  real 
property  with  respect  to  water  iind  water-courses.     Tliu-;, 


Diversion. —  One  riparian  or  adjoining  proprietor  has  no  right  to 
divert  the  water  of  a  stream  to  the  injury  of  another — Oilman  v. 
Tilton,  6  N.  11.232;  Smith  u.  Agawan  Canal  Co.,  2  Allen,  355;  Strout  r. 
Millbri'Ige,  42  Me.  TC;  Garwood  v.  New  York  Central,  etc.,  R.  Co.,  83 
N.  Y.  400;  38  Am.  R.-p.  452;  Shotwell  v.  Dodge,  8  Wash.  337;  3G  Pac. 
K'p.  254;  Covert  t).  Cranfoni,  141  N.  Y.  621;  36  N.  E.  Rep.  597;  Covert 
C.Valentine,  6(5  Ilun,  632;  21  N.  Y.  S.  Rep.  219;  Kay  r.  Kirk,  76  Md. 
41;  24  Atl.  Rop.  326;  Kimberly  &  Clark  Co.  v.  Hewitt,  79  Wis.  334;  48 
N.  W.  Rep.  373;  Stanton  v.  Norfolk  &  C.  R.  Co.,  Ill  N.  C.  278;  IG  S.  E- 
Rep.  181;  Weis  v.  Oregon  I.  &  S.  Co.,  13  Ore.  496;  11  Pac.  Rep.  265; 
Wright  r.  Syracuse,  etc.,  R.  Co.,  49  Ilun,  445;  3N.  Y.  S.  Ri^p.  480;  Cheeves 
r.  Daniolly,  80  Ga.  114;  4  S.  E.  Rep.  902;  Stevens  v.  Kelley,  78  Me.  445; 
13  Atl.  Rep.  45;  6  Atl.  Rep.  868. 

To  entitle  one  to  redress  for  the  diversion  of  water  there  must  be 
actual  damage. —  McElroy  v.  Goljle,  (!  Ohio  St.  187;  Norway  Plains  Co.  v. 
Bradley,  52  N.  II.  lOS;  Elliott  v.  Finchijurg  R.  Co.,  10  Cush.  191; 
Chalk  V.  McNally,  11  Rich.  153;  Williams  u.  Camden  &  R.  W.  Co.,  79  Me. 
643;  11  Atl.  Rep.  600. 

A  riparian  proprietor  may  divert  water  as  it  passes  through  his  land  if 
he  restores  it  to  its  natural  channel  before  it  enters  the  lands  of  other  pro- 
prietors and  does  not  diminish  its  flow. —  Canfleld  v.  Andrews,  54  Vt.  1; 
41  Am.  Rep.  828;  Garwood  v.  New  York  Cent.,  etc.,  R.  Co.,  83  N.  Y.  400; 
Pettibone  0.  Smith,  37  Mich.  579. 

No  action  lies  for  diverting  underground  water  percolating  through 
the  soil  and  not  flowing  in  any  stream. —  Chase  v.  Silverstone,  62  Me.  175; 
Wilson  ».  New  Bedford,  108  Mass.  265;  Frazier  v.  Brown,  12  Ohio  St. 
294;  Chatlleld  v.  Wilson,  28  Vt.  49;  Roath  v.  Driscoll,  20  Conn.  533; 
Greenleaf  v.  Francis,  18  Pick.  117;  Elster  v.  City  of  Springfleld,  49  Ohio 
8U  82;  30  N.  E.  Rep.  274;  Alexander  v.  United  States,  25  Ct.  CI.  87; 
Southern  Paciflc  R.  Co.  v.  Dufour,  95  Cal.  615;  30  Pac.  Rep.  783.  But 
the  rule  is  different  where  the  underground  water  is  a  stream  which  can 
belracetl  and  identifled. —  Castalia  Trout  Club  Co.  v.  Castalia  Sporting 
Club,  8  Ohio  Cir.  Ct.  Rep.  194;  McClellan  v.  Hurdle,  3  Col.  App.  430;  33 
Pac.  280;  Colrick  v.  Swinburne,  105  N.  Y.  503;  12  N.  E.  Rep.  427;  Bur- 
roughs V.  Saterlee,  67  la.  396;  56  Am.  Rep.  350. 

It  was  held  in  Chatfleld  v.  Wilson,  supra,  immaterial  with  what  motive 
the  act  was  done. —  See  Frazier  v.  Brown,  12  Ohio  St.  294;  Paine  v. 
Chandler,  134  N.  Y.  385;  32  N.  E.  Rep.  18. 

Pollution. —  An  action  lies  against  one  for  placing  noxious  sub- 
stances on  his  land,  thereby  fouling  the  surface  water  flowing  over  the 
land  of  his  neighijor.— Gawlrig  v.  Leland,  31  N.  J.  Eq.  385;  Indianapolis 
Water  Co.  v.  American  Strawboard  Co.,  67  Fed.  Rep.  100. 

7 


98        NEGLECT   OF   DUTIES    REQUIRING    ORDINARY    CARE. 

as  we  have  just  said,  if  a  man  brings  water  in  a  dangerous 
state  upon  his  land,  his  right  to  do  so  is  subordinate  to  his 
neighbor's  right  to  have  his  land  free  from  such  danger. 
So,  also,  the  right  of  a  man  to  take  water  from  his  own 
water-course,  or  to  add  to  it  in  quantity  or  to  injure  its 
quality,  is  subordinate  to  his  neighbor's  right  to  have  the 
accustomed  stream  flow  down  to  him.  All  such  matters, 
therefore,  are  beyond  the  scope  of  the  present  work.  It  is 
only  where  the  rights  of  the  parties  are  equal,  and  where 
if  injury  arose  there  would  be  no  remedy  in  the  absence 

Or  fouling  water  percolating  beneath  the  surface. —  Brown  v.  Ilius,  27 
Conn.  84. 

For  suffering  filthy  water  to  filter  through  the  soil  into  the  land  of  an 
adjoining  proprietor. —  Ball  v.  Nye,  99  Mass.  582. 

Discharging  sink  water  into  a  brook. —  Jackson  v.  Arlington  Mills,  137 
Mass.  277. 

Polluting  a  well.  —  Collins  v.  Chartiers  Val.  Gas  Co.,  131  Pa.  St.  143; 
18  Atl.  Rep.  1012;  25  W.  &  C.  139. 

Or  a  stream,  as  by  washing  ore  in  water  returned  to  it. —  Drake  v. 
Lady  Ensley  C.  I.  &  R.  Co.,  102  Ala.  501 ;  14  So.  Rep.  749;  Tenn.  C,  I.  &  R. 
Co.  V.  Hamilton  (Ala.),  14  So.  Rep.  167;  Satterfleld  v.  Rowan,  83  Ga.  187; 
9  S.  E.  Rep.  677.     See  Gould  on  Waters,  §§  219,  288. 

In  a  recent  English  case  plaintiff  and  defendant  were  adjoining  land- 
owners and  each  had  a  well  on  his  own  land,  that  of  plaintiff  being  the 
deeper  of  the  two.  The  water  in  the  plaintiff's  well  rose  naturally  to 
within  twenty-seven  feet  of  the  surface  land  and  he  used  a  pump  to  raise 
it  that  distance.  The  defendant  began  to  discharge  sewage  from  his 
house  into  his  well  which  percolated  through  the  soil  and  polluted  the 
water  which  the  plaintiff  pumped  up  from  his  well.  It  was  held  by  the 
Court  of  Appeal  (reversing  Pearson  J.,  50  L.  T.  Rep.  N.  S.  230;  26  Ch. 
Div.  194;,  that  the  plaintiff  was  entitled  to  an  injunction  restrainmg  the 
defendant  from  using  the  well  so  as  to  pollute  the  water  in  the  plaintiff's 
well  and  also  to  damages  for  any  injury  he  had  sustained  in  consequence 
of  the  pollution.— Ballard  v.  Tomlinson,  29  Ch.  Div.  115;  18  Chicago 
Legal  News,  3.     See  Maguire  v.  City  of  Cartesville,  76  Ga.  84. 

In  Upjohn  v.  Richland  Township  (46  Mich.  542),  it  was  said  by 
Cooley,  J. :  "  If  withdrawing  the  water  from  any  well  by  an  excavation  on 
adjoining  lands  will  give  no  right  of  action,  it  is  difficult  to  understand 
how  corrupting  its  waters  by  a  proper  use  of  the  adjoining  premises  can 
be  actionable,  when  there  is  no  actual  intent  to  injure  and  no  negligence. 
The  one  act  destroys  the  well,  and  the  other  does  no  more;  the  injury  is 
the  same  in  kind  and  degree  in  the  two  cases." 


BKINOINO    WATER    ll'ON    LAND.  1)9 

of  nogligencc,  that  the  question. of  lieffllgbiiccJarisesj  This 
limy  bo  well  illustnited  by  tl-xo  case  of  erecting  a  dam  nn-a 
river.  If  the  circ'um>-t,aiU'OS  connected  with  the  river,  the 
adjoining  property,  and  the  dam  arx!  of  suci:  •a-nJiliiie ''.hat 
[79]  injury  to  his  neighbiH-'slnatiimouipt  r?ght  is  the  result 
of  what  the  owner  of  the  property  does,  and  no  care  in 
[SO]  the  doing  of  it  would  make  any  ditl'erence,  then  the 
owner  is  doing  a  wrong  or  trespass  for  which  an  action 
would  lie  irrespective  of  any  allegation  of  negligence;  hut 
if  the  circumstances  connected  with  the  river,  the  adjoin- 
ing property  and  the  dam  were  such  that  if  care  were  taken 
no  injury  to  any  paramount  right  would  arise,  then  no 
action  would  lie  for  injury  done  unless  negligence  were 
proved.  The  dam  in  the  former  case  is  a  dangerous  thing 
which  a  man  erects  at  his  peril,  and  the  right  to  do  so  is 
subordinate  to  his  neighbor's  right  to  hold  his  lands  free 
from  danger;  while  in  the  latter  case,  it  is  only  the  exer- 
cise of  a  right  to  use  his  property  so  as  not  to  injure  his 
neighbor,  which  is  equal  to  his  neighbor's  right  to  enjoy 
his  own  property.  If,  therefore,  by  some  unusual  and 
sudden  accident  the  dam  in  the  latter  case  causes  injury, 
the  owner  is  not  liable  for  the  injury;  but  if  he  has  been 
negligent  in  respect  of  the  dam  he  is  liable  for  such  uegli- 
geoce  (/). 

The  case  of  Harrison  v.  Great  Northern  Kaihvay  (g) 
was  a  somewhat  singular  one,  and  is  very  instructive.  The 
defendants  had  undertaken  to  maintain  a  cut.  The  banks 
were  not  sufficient  to  resist  the  pressure  of  the  water  which 
they  could  contain.  The  cut  ran  into  the  river  William, 
and  the  Witham  Commissioners  neglected  to  cleanse  the 


(/)  The  law  la  well  Illustrated  by  the  works  Co.,  11  Exch.  '.81    (company   not 

following  cases:  Hagnall  v.  L.  &S.\V.  liable  for  buritlng  of  pipes  In  extremely 

Uy.  Co.,  7  II.   &  N.  42:5,  alT.  1  U.  &  C.  544  cold  winter) ;  Harrison   v.  Great  North- 

(company  cat  Into  soil  over  mine,  and  em  Uy.,  3  II.  &  C.  231  (bursting  of  bank 

ballt  bridge  over  stream,  and  neglected  of  drain), 
to  repair  drains —held  liable  for  negli-  (g)  supra. 

gence);  IJlyUi  v.    Birmingham    Water- 


100      NEGLECT   or   DUTIES    REQUIRING   ORDINARY   CARE. 

[81]''  river,  'by  reason' of  which  neglect  the  cut  became  full 
ot  water  and  burst  its  bank's-;.. :  The  cut  would  not  have  burst 
except  for  the  wrongful  condiiot  of  the  commissioners. 
ThBre-iw.a.s  lie- sudden  storm  or  sudden  wrongful  act  done 
by  the  commiGsionflrs,. iiub  -the  stopping  up  had  been  of 
frequent  occurrence.  It  was  held,  not  that  having  brought 
the  water  there  the  defendants  were  bound  to  restrain 
it,  which  it  was  said  was  unnecessary  to  be  decided  in  that 
case,  but  that  the  bank  was  defective  by  reason  of  the 
negligence  of  the  defendants,  and  that  the  defective  bank 
was  the  proximate  cause  of  the  injury,  notwithstanding 
the  obligation  upon  the  commissioners  to  cleanse  the 
outlet. 

Another  interesting  case  is  that  of  Fletcher  v.  Smith  (Zt), 
There  the  owner  of  property  had  for  his  own  convenience 
diverted  a  stream,  making  a  new  channel,  but  negligently 
making  such  channel  insufficient.  The  water  had  flowed 
»down  from  the  defendant's  to  the  plaintiff's  mine  through 
cracks,  caused  by  the  ordinary  working  of  the  defendant's 
mine,  and  if  the  ordinary  watercourse  had,  in  consequence 
of  such  ordinary  working,  run  through  the  cracks,  it 
appears  from  the  judgment  (citing  Wilson  v.  Waddell,  2 
App.  Cas.  95)  that  the  defendant  would  not  have  been 
liable,  that  is  to  say,  he  would  have  been  exercising  a 
paramount  right  of  property;  but  when  he  chose  to  alter 
the  watercourse  he  was  exercising  no  such  paramount  right, 
but  a  right  which  was  no  greater  than  the  plaintiff's  right 
to  have  his  own  land  free  from  any  unusual  flow  of  water 
caused  by  the  defendant's  acts. 

The  owner  or  landlord  of  a  house  is  generally  responsible 
for  the  original  construction,  etc.,  of  the  pipes,  cisterns,  etc., 
unless  some  agreement  has  been  made  to  the  contrary,  and 
the  tenant  is  only  responsible  for  the  way  in  which  he  uses 
them  (i).     Where  the  tenant   of  an  upper  floor  jdoes  not 

(h)  Fletcher  v.  Smith,  L.   R.  2  App.  (i)  See  Shearman,  ss.  512-614.    [Fash 

Ceb.  781;  43  L.  J.  Ex.  70.  v.  Kavanaugh,  24  How.  Pr.  3471. 


LANDLORD  AND  TENANT.  101 

[S2]  know  of  the  defective  state  of  his  receptftclo  for 
water,  and  there  is  no  negligence  in  his  mode  of  dealing 
with  it,  and  it  ovcrllow.s  and  injures  the  room  of  the  tenant 
below,  the  doctrine  of  Fletcher  v.  Kylands,  a)i(e,  does  not 
apply  {k)y  and  he  is  not  obliged  to  keep  his  pipes  from 
overtlowing  in  any  event,  but  is  only  liable  for  negligence. 
Probably  the  tenant  of  the  upper  tloor  would  be  liable  in 
an  action  for  negligence  if  he  had  notice  of  the  dangerous 
state  of  the  pipes  and  did  not  remedy  the  defect,  although 
he  did  no  other  act  of  negligence. 

Where  a  landlord  demised  a  house  in  flats  with  a  com- 
mon water  supply  by  branch  pipes  he  was  held  by  Field, 
J.,  not  liable  for  damages  caused  by  the  bursting  of  the 
pipes  in  the  absence  of  negligence  in  fixing  the  pipes  and 
maintaining  them.  If  there  had  been  such  negliirence  it 
seems  it  might  have  been  a  breach  of  the  covenant  for  quiet 
enjoyment  {I).  This  was  affirmed  in  the  Court  of  Appeal 
because  the  covenant  was  prospective,  and  during  the 
demise  nothing  had  been  done  to  interrupt  the  quiet  enjoy- 
ment. It  was  also  held  that  the  water  supply  being  for 
the  common  benefit  the  plaiutilf  had  no  cause  of  action 
founded  upon  Fletcher  v,  Ry lands  {m). 

A  landlord  is  liable  for  his  own  negligent  misfeasance  in 
the  construction  or  upholding  of  his  property  (^/),  but  not 
for  the  negligence  of  his  tenant.  Thus,  the  landlord  is 
liable  for  the  consequences  of  a  nuisance  (as  an  obstruction 
of  ancient  lights),  even  after  he  has  leased  the  premises  (o), 
and  ho  is  liable  for  defects  which  existed  before  he  parted 
with   the   property   (p)-     It  seems,  however,  that  if  the 

(k)  UoBS  t'.  Feddon,  41  L.  J.  Q.  IJ.270;  (o)  Roswell  v.  Prior,  2  Salk.  4Gn;  Rox 

L.U.7g.  0.661;  [Eaklnv.  Brown,  IE.  D.  v.  Padley.l  A.&K.8-i7;  Gandy  r.  Jubbor, 

Smith,  36.]  5  B.  &  S.   78,  4S5 ;  Leslie  v.   I'oands.  4 

(0  Anderson  v.  Oppenbeimer,49L.  J.  Taunt.G49.    Si-c  Bartlettr.  Baker,.',  II.  & 

Q.  B.  456.  C.  IM  (piles  put  In  river  by  defendant, 

(wj)  49  L.  J.  C.  A.  708;  6  Q.  B.  D.  602.  sold  to  another,  who  cut  them  olf  and 

(m)  Nelson  f.  Liverpool  Brewery  Co.,  did  not  remove  them.    Defendant  not 

L.  II.  2  C.  r.  D.  311;  46  L.  J.  C.  P.  675.—  liable). 

[O'Connor  v.  Cartis  (Texas),  18  8.  W.  (p)  Alston  r.  Grant,  3  El.  *  B.  128; 

Bep.  853.]  Cheetham  v.  llnmpson,  4  T.  11.  318. 


102       NEGLECT   OF   DUTIES    REQUIRING    ORDINARY    CARE. 

[83]  owner  had  no  means  of  knowing,  and  in  fact  did  not 
know  of  the  defect,  and  the  tenant  has  covenanted  to 
repair,  the  owner  is  no  longer  liable  (q). 

If  the  owner  has  covenanted  to  do  the  repairs,  then  he 
is,  of  course,  responsible  for  them  as  far  as  the  tenant  is 
concerned,  and  is  also  liable  to  third  parties  (r) ;  but  if  the 
tenant  by  his  own  negligent  conduct  makes  the  property- 
injurious  to  others  he  cannot  shelter  himself  under  a  cove- 
nant by  the  landlord  to  repair  the  mischief  (s). 

A  landlord,  however,  is  not  liable  to  the  guests  of  his 
tenant,  even  for  injuries  caused  by  defects  existing  before 
the  creation  of  the  lease  (t)  ;  unless,  indeed,  he  knows  that 

(g)  Gwinnell  r.  Earner,  L.  R.  10  C.  P.  no  defense  that  it  had  always  been  so, 

658,  following  Pretty  r.  Bickmore,  L.  R.  8  time  out  of  mind:  Coupland  v.  Harding- 

C.  P.  401.    The  contrary  seems  to  have  ham,  3  Camp.  338.    See  Proctor  v.  Har- 

been    held   in  America,  Taylor  v.  New  ris,  4  C.  &  P.  337;  Daniels  v.  Potter,  i6. 

York,  4  E.  D.  Smith,  559.    [In  Swords  v.  26  (cellar  flaps);   Hadley  v.  Taylor,  14 

Edgar,  59  X.  Y.  28,  the  court  say :  "  The  W.  R.  59  ;  13  L.  T.  N.  S.  368. 
remarks  of  Woodruff,  J.,  in  Taylor  v.  (s)  Pickard  t?.  Smith,10  C.  B.  N.  S.  470. 

Mayor,  E.  D.  Smith,  559,  apply  to  a  case  — [Eyer  v.  Jordan,  111  Mo.  424;  19  S.  W. 

where    the  want  of  repair  has    arisen  Rep.  1095 ;  Sterger  v.  Van  Siclen,  7  X.  Y. 

after  the  leasing.    See  infra.]  S.  Rep.  805.] 

(r)  Payne  r.  Roger8,2  H.  Bl.  350;  Todd  (t)  Robins  v.  Jones,  15  C.  B.  N.  S.  221; 

r.riight.OC.  B.N.  S.  377;  Nelson  1'.  Liver-  Ryan  v.  Wilson  [S;  N.  Y.  471],  41  Amer. 

pool  Brewery  Co.,  L.  R.   2  C.  P.  D.  311;  Rep.  384.— [Hilsenbeck  v.  Guhring,  131 

46  L.  J.  C.  P.  675.    Where  a  tenant  left  N.  Y.  674;  30  N.  E.  Rep.  580.] 
his  area  open  to  the  street  it  was  held 

Liability  ol  Landlord  and  Tenant  for  Injuries  to  Third  Persons.  — 
The  landlord,  as  well  as  the  tenant,  is  liable  for  Injuries  to  third  persons 
caused  by  the  defective  condition  of  demised  premises  amounting  to  a 
nuisance  at  the  time  of  and  continuing  after  the  letting  (Durant  v. 
Palmer,  29  N.  J.  L.  544;  Stephani  v.  Browne,  40  111.  428;  Moody  v.  New 
York,  43  Barb.  282;  Swords  v.  Edgar,  59  N.  Y.  28;  17  Am.  Rep.  295; 
Owings  V.  Jones,  9  Md.  108;  Joyce  v.  Martin,  15  R.  I.  558;  10  Atl.  Rep. 
620;  Riley  v.  Simpson,  83  Cal.  217;  23  Pac.  R^p.  293;  Timlin  v.  Standard 
Oil  Co.,  7  N.  Y.  S.  Rep.  158),  as  for  coal  holes  in  the  sidewalk.  — Con- 
greve  v.  Smith,  8  N.  Y.  79;  Irvine  v.  Wood,  51  N.  Y.  224.  See  Adams 
V.  Fletcher,  17  R.  I.  137;  20  Atl.  Rep.  263. 

(But  where  there  was  a  permit  from  the  city  to  construct  a  coal  hole 
in  a  sidewalk,  with  an  opening  leading  to  it,  and  while  it  was  under  the 
entire  control  of  the  tenant,  through  a  defect  in  the  stone  caused  by 
strangers,  plaintiff  was  injured,  it  was  held  he  could  not  recover  against 
the  owner  of  the  premises  merely  because  he  was  the  landlord;  he  was 


LANDLORD    AND    TKNANT.  10.3 

[84]     strangers  will  bo  invited,  and  that  the   premises  are 
unsuitable  for  such  invitation  of  strangers  (w). 

i,u)  Godley  v.  Ilagerty,  20  Pa.  St.  TiSV;  Valentine,  21  N.  Y.  S.   Rep.  776;  3  Misc. 

Strallon  r. SUiplc.O'.i  Maine, ',14;  Edwards  Rep.  20;  Montlcth  i-.  Flnkbelncr.riC  Hun, 

f.  New  York  Ry.  Co.,  20  Hun,  N.  Y.  GS4;  633;  21  N.  Y.  8.  Rep.  2S8,  following  Uen- 

amrmed  on  appeal,  98  N.  Y.  245.—  [This  kel  t'.  Marr,  31  Ilun,  28.    But  the  rule 

knowledge  maybe  Implied.  —  Curtis  r.  docs  not  protect   one    attending  on    a 

Klluy,  l.'>3  Mass.  123;  2G  N.  K.  Rep.  421;  "wake  "  without  an  invitation,  express 

O'Sulllvan    v.    Norwood,  14    Daly,   286;  or  implied.  —  Hurt  v.  Cole,  156  Mass.  475; 

Fieheri-.  Jansen, 30111.  App.'.U  ;  alllrmed.  31  N.  E.  Rep.  644.] 
128  Ul.  549;  21  N.  E.  Rep.  598;  Brady  v. 


not  liable  unless  the  injury  was  caused  by  some  fault  on  his  part.  —  Wolf 
V.  Kirkpatrick,  N.  Y.  Ct.  App.,  4  N.  E.  Rep.  188;  22  C.  L.  J.  olG,  and 
note.  The  court  said  the  case  was  not  within  the  principle  of  Clifford 
».  Dam  (81  N.  Y.  12),  where  no  permission  or  license  from  the  munici- 
pality to  make  the  excavation  was  pleaded  or  proved,  and  the  construc- 
tion of  the  vaults  was  an  unauthorized  wrong  and  a  nuisance,  for  the  con- 
sequences of  which  the  owner  was  responsible,  irrespective  of  the 
question  of  negligence;  that  there  was  the  same  lack  of  special  author- 
ity in  Dygert  v.  Schenck  (23  Wend.  4),  and  Cougreve  v.  Morgan  (IS 
N.  Y.  79). 

When  the  premises  can  not  be  used  for  the  purpose  designed  without 
creating  a  nuisance  (House  v.  Metcalf,  27  Conn.  (J32),  the  owner  Is  liable. 

So  also  when  the  owner  knows  of  the  defective  condition  of  the 
premises  at  the  time  of  the  letting,  or  is  properly  chargeable  with  knowl- 
edge thereof.  —  Godley  v.  Hagerty,  20  Pa.  St.  387;  Carson  v.  Godley,  2G 
Pa.  St.  Ill;  Dalay  v.  Savage,  145  Mass.  38;  12  N.  E.  Rep.  841;  Albert 
V.  State,  C6  Md.  325;  7  All.  Rep.  G97;  Fellows  v.  Gilhuber,  82  Wis.  C39; 
62  N.  W.  Rep.  307.  But  see  Burdick  v.  Cheadle,  20  Ohio  St.  397.  In- 
sufficient notice,  see  Hutchison  v.  Cummings,  15G  Mass.  329;  31  N.  E. 
Rep.  127,  following  Tuttle  v.  Manufacturing  Co.,  145  Mass.  109;  13  N.  E. 
Bep.  465. 

And  it  has  been  held  that  "  one  who  so  constructs  a  privy  well  that  if 
filled  above  a  certain  height  it  becomes  a  nuisance  to  the  adjoining  prop- 
erty he  is  liable  therefor  although  the  premises  are  at  the  time  the  nui- 
sance occurs  in  the  possession  of  a  tenant."  —  Flow  v.  Roberts,  108  Pa. 
St.  489;  19  Rep.  793. 

The  owner  of  a  lot  of  land  abutting  on  a  highway,  on  which  was  a 
building  consisting  of  several  shops,  having  a  wooden  platform  extend- 
ing from  it  to  the  sidewalk,  constructed  for  their  common  use,  and  used 
by  the  public  as  a  passage  way,  was  held  liable  to  a  person  wlio,  in  the 
exercise  of  due  care,  was  injured  by  a  defect  in  the  platform,  In  the 
absence  of  an  agreement  by  the  tenants  to  keep  it  in  repair.  —  liead- 
man  v.  Conway,  126  Mass.  374. 

So  where  there  is  an  opening  Ave  feet  long  and  ton  inches  wide  in  the 


104      NEGLECT    OF   DDTIES   REQUIRING   ORDINARY    CARE. 

[85]  In  the  absence  of  a  covenant  in  the  lease  a  land- 
lord is  not  answerable  for  injuries  to  the  cattle  of  third 

pavement  just  below  a  show  window  in  the  front  of  a  store  building 
standing  back  six  feet  from  the  sidewalk,  it  was  held  that  the  owner  was 
liable  to  one  injured  thereby,  although  possession  had  been  yielded  to  a 
tenant.— Tomle  v.  Hampton,  28  111.  App.  U2;  21  N.E.  Rep.  800;  129  111. 
379. 

But  the  Supreme  Court  of  Texas  seem  to  view  the  rule  of  law  differ- 
ently in  the  case  of  Texas  &  P.  Ry.  Co.  v.  Mangum  (Tex.,  4  S.  W.  Rep. 
617),  where  the  company  was  held  not  bound  no  keep  in  repair  or  well 
lighted  a  platform  leading  to  an  eating  house,  both  erected  and  main- 
tained by  a  lessee. 

In  Camp  v.  Wood  (76  N.  Y.  92)  it  was  held  that  a  person  in  letting  a 
hall  for  public  purposes  holds  out  to  the  public  that  it  is  safe,  and  he  is 
bound  to  exercise  proper  care  in  providing  safe  arrangements  for  en- 
trances. This  was  an  action  to  recover  damages  for  injuries  resulting 
from  the  plaintiff's  stepping  off  an  unguarded  piazza,  the  door  upon 
which  occupied  the  same  relative  position  to  the  upper  flight  of  stairs  as 
the  stair  doorway  to  the  lower  flight. 

But  in  another  case  it  was  held  that  the  owner  of  a  building  leased  to 
a  tenant  who  occupied  it  was  not  liable  to  a  third  person  who,  iu  passing 
along  the  walk  leading  from  the  street  to  a  building  for  the  purpose  of 
transacting  business  with  the  tenant,  was  injured  by  falling  down  an 
embankment  adjoining  the  walk,  although  the  estate  was  in  that  condi- 
tion prior  to  the  letting. —  Wellen  v.  Morrill,  126  Ma-s.  545. 

And  where  a  building  was  let  to  be  used  for  a  public  entertainment, 
and  one  of  the  galleries  fell  by  the  stamping  of  a  crowd  keeping  time 
with  the  music,  and  injured  the  plaintiff,  it  was  held  that  the  landlord  was 
not  liable;  that  in  the  absence  of  evidence  tending  to  show  that  defend- 
ant knew,  or  had  reason  to  believe  that  there  was  some  defect  in  the 
gallery,  or  that  it  was  of  insuflicient  strength  to  hold  the  number  of  peo- 
ple it  contained,  or  that  it  was  used  in  such  a  way  to  injure  its  security, 
plaintiff  was  properly  nonsuited. —  Edwards  v.  New  York,  etc.,  R.  Co.,  98 
N.  Y.  245. 

It  has  been  held  in  Massachusetts  that  when  the  lessee  has  covenanted 
to  make  repairs  the  lessor  is  not  liable  for  damages  to  third  persons  from 
the  original  defective  condition  of  the  premises. — Leonard  v.  Storer,  116 
Mass.  86;  15  Am.  Rep.  76. 

On  the  other  hand  it  was  held  in  New  York  that  the  lessors  of  an  un- 
safe pier  were  liable  for  injuries  to  a  third  person,  though  at  the  time  it 
was  leased  to  one  who  covenanted  to  repair. —  Swords  v.  Edgar,  59  N.  Y. 
28;   17  Am.  Rep.  295. 

In  both  cases  the  lessors  were  properly  chargeable  with  knowledge  of 
the  defective  condition  of  the  thing  demised.  The  latter  authority  seems 
to  be  the  better  law.—  1  Thomp.  Neg.  323. 


FENCES.  105 

parties  [8()]  arising  from  his  tonant's  neglect  to  repair 
fences  (x).  Nor  is  ho,  at  common  law,  under  any  obliga- 
tion to  fence  as  between  himself  and  his  tenants  (y). 

{r)  Cheotham  v.  nampson,  4  T.    U  756;  42  L.  J.   Ch.  SJ5.— [Potu-r  r.  New 

818;  I'Byno    r.    Uoklth.    2     H.    HI.    350;  York,  C.  &  U.  U.  K.  Co.,  15  N.  Y.  b.  llcp. 

(TowkHbury  r.  Hiicklln,  7  X.  U.  618.)  12.J 

(y)   Erxklue  t'.   Adcuno,  L.    R.  8  Cb. 

Where  the  landlord  has  covenanted  to  repair  and  by  reason  of  hi.s 
failure  to  do  so,  a  third  pcr.son  is  injured,  the  landlord  will  be  liable.  — 
Benson  v.  Suarez,  43  Barb.  408;  Chicago  v.  O'Brennan,  Go  111.  IGO. 

But  where  a  statute  provided  that  the  landlord  should  furnish  and 
keep  In  repair  Are  escapes  on  the  premises,  and  a  child  of  a  tenant  got 
out  on  the  platform  of  the  fire  escape  attached  to  the  building,  and  fell 
through  the  trap  door  in  consequence  of  its  being  out  of  repair  and  was 
injured,  the  landlord  was  held  not  liable. —  McAlpin  v.  Powell,  70  N.  Y.  12G. 

Wlien  a  landlord  renews  a  lease  with  a  nuisance  thereon,  "be  is  liable 
for  its  existence.— State  u.  Williams,  30  N.  J.  L.  112;  Fleischner  v.  Citi- 
zens' R.  E.  &  I.  Co.,  25  Ore.  Il'J;  35  Pac.  Rep.  174;  Rankin  r.  Ingwcrsen, 
49  N.  J.  L.  481 ;  10  Atl.  Rep,  545,  affirming  Ingewerseu  v.  Rankin,  47  N. 
J. L.  18. 

The  rule  as  to  the  liability  of  the  tenant  for  a  nuisance  created  on  the 
premises  before  the  letting  and  continued  afterwards  a|)plies  as  between 
vendor  and  purchaser. —  Prentiss  v.  Wood,  132  Mass.  48G;  p]a<tman  r. 
Araoskeag  Manuf.  Co.,  44  N.  II.  143;  Dorman  v.  Ames,  12  Minn.  451; 
McGrath  v.  Walker,  18  N.  Y.  S.  Rep.  915. 

But  the  purchaser  must  be  notifled  of  the  existence  of  the  nuisance 
and  requested  to  abate  it  before  he  can  be  held  liable  for  Its  continu- 
ance.—Woodman  V.  Tufts,  9  N.  H.  88;  Johnson  v.  Lewis,  13  Conn.  402; 
PUlflbury  v.  Moore,  44  Me.  154;  Ahem  v.  Steel,  115  N.  Y.  203;  22  N.  E. 
Rep.  193;  Woram  v.  Iloble,  41  Ilun,  3'.t8.  And  if  the  grantee  have  not 
power  to  abate  the  nuisance  he  is  not  liable  for  it.—  Lufkin  v.  Zane,  157 
Mass.  117;  31  N.  E.  Rep.  757. 

Where  a  lessee  continued  a  nuisance  —  a  lime  kiln  —  of  a  nature  not 
easentially  nnlawful,  he  was  held  liable  to  an  action  only  after  notice  to 
abate  it.—  Slight  v.  Gutzlaff,  35  Wis.  G75. 

From  this  review  of  the  cases  it  seems  that  the  proper  rule  Is  that  the 
party  controlling  the  property  at  the  time  of  the  Injury  is  liable  for  it; 
except  those  cases  whore  the  wrong  amounts  to  a  nuisance,  In  which 
both  landlord  and  tenant  are  generally  liable. —  City  of  Boston©.  Gray, 
144  Mass.  53;  10  N.  C.  Rep.  500;  City  of  Denver  v.  Soloman,  2  Col.  App. 
634;  31  Pac.  Rep.  507. 

Thus,  where  the  landlord  retains  control  of  the  property  he  will  be 
liable  for  a  nuisance  created  thereon. —  Shipley  i>.  Fifty  Associates,  101 
Mass.  251;  Marshall  o.  Cohen,  44  Ga.  489;  Health  v.  Valentine,  57  IIuu, 


106      NEGLECT   OF   DUTIES    REQUIRING   ORDINARY    CARE. 

[87]  We  naturally  come  at  this  place  to  consider  what 
is  the  obligation  upon  owners  of  real  property  with  respect 

591;  U  N.  y.  S.  Rep.  112;  14  N.  Y.  S.  Rep.  941.  Or  other  negligent 
management,  as  the  failure  to  light  stairways. —  Marwedel  v.  Cook,  154 
Mass.  235;  28  N.  E.  Rep.  140.  Or  to  close  a  coal-hole. —  Stevenson  t;. 
Joy,  152  Mass.  45;  25  N.  E.  Rep.  78.  Or  the  falling  of  cornice  from  a 
building,  though  leased.— O'Connor  v.  Curtis,  (Tex.),  18  S.  W.  Rep. 
953,  following  O'Connor  v.  Andrews,  81  Tex.  28;  16  S.   W.  Rep.  628. 

Or  leaving  barrels  in  a  passage  way  at  night. —  Brunker  v.  Cummins, 
133  Ind.  443;  32  N.  E.  Rep.  732. 

And  for  injuries  to  third  persons  caused  by  a  nuisance  created  on  the 
premises  after  the  letting  the  tenant  and  not  the  landlord  is  liable. — 
Ditchett  V.  R.  R.  Co.,  67  N.  Y.  425;  Shindelbeck  v.  Moon,  32  Ohio  St. 
264;  30  Am.  Rep.  584;  Wolf  v.  Kirkpatrick,  N.  Y.  Ct.  Ai>p.,  supra;  St. 
Louis  V.  Kaime,  2  Mo.  App.  66;  Ryan  v.  Wilson,  87  N.  Y.  461;  41  Am. 
Rep.  384;  Harris  v.  Cohen,  50  Mich.  324;  Kalis  v.  Shattuck,  69  Cal.  593; 
58  Am,  Rep.  568;  11  Pac.  Rep.  346;  Borman  v.  Sandgren,  37  III.  App. 
160;  O'Brien  v.  Greenbaum,  4  N.  Y.  S.  Rep.  852;  Baggage  v.  Powers,  7 
N.  Y.  S.  Rep.  306;  McPartland  v.  Thorns,  4  N.  Y.  S.  Rep.  100;  Abbott©. 
Jackson,  84  Me.  449;  24  Atl.  Rep.  900;  Hussey  v.  Ryan,  64  Md.  426;  54 
Am.  Rep.  772. 

But  the  tenant  of  a  burned  building  who  has  obtained  his  acquittance 
is  not'  liable  for  a  personal  injury  caused  by  a  stone  falling  from  the 
building  several  days  after  the  burning. —  Franke  v.  City  of  St.  Louis, 
110  Mo.  516;   19  S.  W.  Rep.  938. 

In  Ryan  v.  Wilson,  supra,  defendant  rented  one  floor  of  a  building  to  L. 
for  a  laundry  and  supplied  him  with  motive  power  by  a  revolving  shaft 
driven  by  steam.  L.  erected  a  partition  near  the  shaft.  The  plaintiff  in 
L.'s  employ  endeavored  to  pass  between  the  partition  and  the  shaft,  and 
was  caught  by  the  shaft  and  injured.  It  was  held  that  he  had  no  cause  of 
action  against  the  defendant. 

But  in  Burdick  v.  Cheadle  (26  Ohio  St.  393),  the  lessor,  under  an 
agreement  with  the  lessee,  put  up  fixtures  on  the  premises.  The  fixtures 
were  insecurely  fastened  to  the  walls  and  the  lessor,  though  requested, 
refused  to  repair  them.  They  afterwards  fell,  injuring  a  customer  of 
lessee.    It  was  held  that  no  action  would  lie  against  the  lessor. 

The  rule  applies  as  between  lessee  and  sub-lessee. —  Clancy  v.  Byrne, 
56  N.  Y.  129;  15  Am.  Rep.  391.  See  Gwathney  v.  Little  Miami  R.  Co., 
12  Ohio  St.  92;  Timlin  v.  Standard  Oil  Co.,  126  N.  Y.  514;  27  N.  E.  Rep. 
786,  modifying  7  N.  Y.  S.  Rep.  158. 

Liability  of  Landlord  to  Tenant. —  In  the  letting  of  an  unfurnished 
house  there  is  no  implied  warranty  of  fitness  for  occupation  and  the  land- 
lord is  not  liable  for  injuries  to  the  tenant  resulting  from  its  defective 
condition.— Krueger  v.  Ferrant,  29  Minn.  385;  43  Am.  Rep.  223;  Purcell 
V.  English,  86   Ind.  34;  44  Am.    Rep.  255;  AVoods  v.  Naumkeag  Steam 


FENCES.  107 

to  fencing  in  cattle.  An  owner  of  cuttle  is  bound,  as  wo 
shall  see,  to  exercise  a  reasonable  control,  an  ordinary  care 

Cotton  Co.,  134  Mass.  357;  45  Am.  Rep.  344;  Bowc  v.  Hunkin^,  135 
Mass.  380;  40  Am.  Rep.  471.  Seo  Edwards  v.  N.  Y.,  etc.,  R.  Co.,  aupru; 
McLeau  v.  Flcko  W.  &  W.  Co.,  158  Mass.  47;  33  N.  E.  Rtp.  4'J'J;  Mc- 
Keon  t'.  Cutter,  latl  Mass.  290;  31  N.  E.  Rep.  o8!);  Qulnn  v.  Perbam,  151 
Mass.  102;  23  N.  E.  Rep.  735;  Ackerly  r.  While,  68  Ilun,  302;  12  N. 
Y.  S.  Rt-p.  140;  Ward  v.  Fagin,  101  Mo.  OOi);  14  S.  W.  Rep.  738;  Slierl- 
dan  r.  Kriipp,  141  Pa.  St.  504;  21  Atl.  Rop.  070;  McKenzie  v.  Cheei- 
ham,  83  Mo.  543;  22  Atl.  Rep.  409;  Doyle  v.  Uiilou  Pac.  Ry.  Co.,  147 
U.  S.  413;  13  S.  Ct.  Rep.  333;  Little  v.  McAdaras,  38  Mo.  App.  187; 
Perez  v.  Rayband,  70  Tex.  191;  13  S.  W.  Rep.  177.  But  see  Leydecker 
r.  Brintnall,  158  Mass.  292;  33  N.  E.  Rep.  399;  Alperin  v.  Earie,  65 
Uun,  211 ;  8  N.  Y.  S.  Rep.  51.  Nor  is  tlie  landlord  liable  to  a  subtenant. — 
Donaldson  v.  Wilson,  00  Mich.  80;  20  N.  W.  Rep.  842. 

The  rule  is  different  where  the  landlord  retains  control  of  the  prem- 
ises. He  is  liable  in  such  case. —  Looney  ».  McLean,  129  Mass.  33;  37 
Am.  Rep.  295;  Jones  w.  Friedeiiburg,  00  Ga.505;  42  Am.  Rep.  80;  Toole 
r.  Becket,  07  Me.  544;  Blake  v.  Fox,  17  N.  Y.  S.  Rep.  508;  Peil  y.  Rciu- 
hart,  127  N.  Y.  381;  27  N.  E.  Rep.  1077;  Sawyer  v.  McGillicuddy,  81 
Me.  318;  17  Atl.  Rep.  124.  Although  the  title  to  the  premises  be  in 
his  wife  the  landlord  in  actual  control  is  responsible  for  the  defective 
cundiliou  of  a  stairway. —  Lindsay  t>.  Leighton,  150  Mass.  285;  22  N.  E. 
Rep.  901. 

Or  reserves  the  right  to  use  them. —  Canuavan  o.  Conkliug,  1  Daly,  509; 

I  Abb.  Pr.  (N.  8.)  271. 

As  where  a  tenant  of  a  part  of  a  building  Is  injured  by  the  falling 
of  the  landlord's  insecurely  fastened  signboard,  which  the  latter  appro- 
priated to  his  own  use. —  Payne  v.  Irvin,  144  111.  482;  33  N.  E.  Rep.  750, 
atllrming  44  111.  App.  105.  So  where  the  owner  retains  control  of  the 
8tairca.se  in  an  ollice  building  he  must  keep  the  stairs  in  a  safe  condi- 
tion, though  there  be  no  contract  with  the  tenants  to  that  effect. —  Miller 
r.  Hancock,  4  Reports,  478  [1893];  2  Q.  B.  197.  See  Poor  v.  Sears,  154 
Mass.  639;  28  N.  E.  Rep.  1040. 

He  is  also  liable,  when,  knowing  the  premises  to  be  in  a  dangerous 
condition,  he  lets  them  without  informing  the  tenant  of  the  fact.  —  Coke 
r.  Gutkese,  80  Ky.  598;  44  Am.  Rep.  499  (rotten  floor  of  privy  vault); 
Dollard  v.  Roberts,  130  N.  Y.  209;  29  N.  E.  Rep.  104;  8  N.  Y.  S.  Rep.  432 
alllrmcd;  Trinity  &  S.  Ry.  Co.  v.  Lane,  79  Tex.  043;  15  S.  W.  Rep.  477; 
Smith  0.  Faxon,  15(;  Mass.   589;  31  N.  E.  Rep.  087;  Daviilson  r.  Fischer, 

II  Colo.  583;  19  Pac.  Rep.  052;  Victory  u.  Foran,  50  N.  Y.  Super.  Ct. 
Rep.  507 ;  4  N.  Y.  S.  Rep.  392.  Constructive  notice  to  ttie  landlord  is  suf- 
ficient—  Evers  v.  Weil,  02  Ilun,  022;  17  N.  Y.  S.  Rep.  29.  Where  tenants 
of  a  tenement  house  are  permitted  to  use  the  yard  it  must  be  made 
safe Canavan  v.  Stuyvesant,  27  N.  Y.  S.  Rep.  413;  7  Misc.  Rep.  113. 


108   NEGLECT  OF  DUTIES  REQUIRING  ORDINARY  CARE. 

over  his  tame  animals,  and  no  doubt  one  mode  of  doing 
that  is  by  the  erection  of  fences,  but  care  may,  of  course, 
be  taken  in  many  other  modes,  as  by  tethering,  watching,  or 
keeping  in  outhouses  ;  and  this  subject  will  be  found  treated 


Such  conduct  amounts  to  fraud.— Wallace  v.  Zent,  29  How.  Pr.  289; 
1  Daly,  481. 

And  where  a  landlord  let  premises,  knowing  that  they  were  infected 
with  small-pox  and  did  not  inform  the  tenant  of  the  fact  and  he  con- 
tracted the  disease,  the  landlord  was  held  liable. —  Minor  v.  Sbarm,  112 
Mass.  477 ;  Cesar  v.  Karutz,  60  N.  Y.  299.  Case  involving  diphtheria 
submitted  to  the  jury.  —  Cutter  v.  Hamlen,  147  Mass.  471;  18  N.  E.  Rep. 
397. 

The  landlord  is  not  liable  for  the  negligence  of  the  tenant  or  his  serv- 
ants in  the  use  of  water-pipes  of  the  demised  premises,  not  originally 
defective.  — Taylor  v.  Bailey,  74  111.  178;  Simonton  v.  Loring,  68  Me. 
164;  28  Am.  Rep.  29;  Harris?;.  Cohen,  50  Mich.  324;  Shindelbeck  v.  Moon, 
32  Ohio  St.  264;  30  Am.  Rep.  584;  17  Am.  Law  Reg.  (n.  s.)  450;  White 
V.  Montgomery,  58  Ga.  204;  Walker  v.  Globe  Mfg.  &  Imp.  Co.,  56  N.  Y. 
Super.  Ct.  Rep.  431;  4  N.  Y.  S.  Rep.  193;  Kenny  v.  Barns,  67  Mich.  336; 
34  N.  W.  Rep.  587. 

In  McCarthy  u.  New  York,  etc.,  Savings  Bank  (74  Me.  315;  43  Am. 
Rep.  591)  a  landlord  set  a  water  basin  in  the  tenant's  room,  the  apertures 
of  which  were  not  sufficient  to  carry  off  all  the  water  that  was  delivered 
by  the  faucet  when  left  open.  The  tenant  carelessly  left  the  faucet  open 
and  the  water  overflowed  and  injured  the  goods  of  another  tenant  occu- 
pying rooms  on  the  lower  story.  It  was  held  that  the  landlord  was  not 
liable. 

But  a  landlord  who  let  tenements  in  a  building,  to  different  tenants 
with  a  right  of  way  in  common,  over  an  uncovered  piazza  annexed  to  the 
rear  of  the  building  and  extending  its  whole  length  and  over  steps  lead- 
ing from  the  end  of  the  piazza  down  to  the  street,  was  held  liable  to  a 
tenant  injured  while  in  the  exercise  of  due  care,  by  falling  upon  ice 
which  had  accumulated  upon  the  piazza  and  steps  by  reason  of  water 
flowiug  from  a  defective  pipe  connected  with  the  roof  of  the  building. — 
Watkins  v.  Goodall,  138  Mass.  533.  Nor  does  the  owner  of  a  tenement 
house  owe  any  duty  to  a  tenant  to  remove  the  ice  and  snow  from  the 
sidewalk  in  front.  —  Little  v.  Wirth,  26  N.  Y.  S.  Rep.  1110;  6  Misc.  Rep. 
301. 

A  tenant  who  has  actual  knowledge  of  the  defects  in  the  premises 
may  so  contribute  to  his  own  injury  that  the  landlord  will  be  relieved 
of  liability.  —  See  Hamilton  v.  Feary,  8  Ind.  App.  615;  35  N.  E.  Rep.  48; 
Town  V.  Armstrong,  75  Mich.  580;  42  N.  W.  Rep.  983;  Handyside  v. 
Powers,  145  Mass.  123;  13  N.  E.  Rep.  462. 


FENCES.  101) 

of  in  the  next  section,  tit.  "  Animals  "  (,:;).  It  is  true  that 
owuiTs  1111(1  ()('cui)iers  of  land  are  under  no  duty  at  common 
law  to  fciico  out  c:itllo  (rt  ),  hut  persons  who  ke('|)  c:ittIo  nnist 
SCO  that  they  <h)  not  trespass  upon  Iho  hind  of  others  (/>). 
Aj^ain,  owners  or  occupiers  may  bo  l)ound  by  proscription 
or  usa(]fO  or  covenant,  to  fence  (c),  and  then  their  ol)Iig:i- 
tion  is  absolute,  and  the  question  of  ncirligence  does  not 
[88]  arise  {d).  Even  in  this  case  it  must  be  remembered 
tliat  it  is  only  the  adjoining  owner  who  can  complain  of  the 
non-repair  of  the  fences,  and  a  third  person  injured  by  such 
breach  of  the  obiis^ation  can  not  bring  an  action  for  such 
iireach  (<■).  It  has  been  well  pointed  out  that  the  injury 
done  to  an  animal  stravinj;  is  jrcnerullv  caused  not  imnicdi- 
ately  by  the  fence,  but  by  something  in  the  tieUl,  and  that 
there  must  be  some  negligence  in  respect  of  that  which  is 
in  the  field  before  the  defendant  can  be  made  liable,  other- 
wise the  d:image  would  be  too  remote  (f).  If  the  danger 
in  the  field  is  one  which  could  have  been  reasonably  foreseen, 
the  defendant  will  be  liable  for  negligence  (7).  The  suffi- 
ciency of  the  fence  is,  of  course,  a  question  for  the  jury. 
It  should  be  of  sufficient  height  and  strength  to  keep  out 
animals  such  as  are  ordinarily  kept  in  fields  (h).  It  should 
be  remembered  that  we  are  not  here  dealing  with  questions  of 


(s)  See  post,  B.  3,  Animals.  lln,  7  X.  11.  618;  Gregg  r.  Gregg,  55  Pa. 

(d)  1   Wins.   Saunders,  55!),  note  (6),  St    227;  Gardner  v.  Smith,  7  Mich.  410; 

ed.  1871;  Wi-lls  v.  Howell,  19  Johns.  385.  Well-sr.  IIowell,19  Johns.  SS.'i;  Lawrence 

In  Anu'ricii  different  rules  prevail  in  dlf  v.  Combs,. 'J?  N.  H.331 ;  IJronson  r.  Collin, 

fereDtStatC!^  upon  this  point,  see  Shear-  103  Mass.  175;  Ulchnrdson  v.  .MiUnirn,  11 

man,  Ch.  XIX.  Md.  340.]—  [Castner  v.  Itlegel,  G4    X.   J. 

(6)  IJoyle  r.  Tamlyn,  6  IJ.  &  C.   337.  493;  24  AU.  Kcp.  484.] 

—  [Ilarber  V.  Mcnsch,  1J7  Pa.  St.  3'.H);  27  («)   Chcelham    v.    Hampson,  sitpra; 

At.  Uep.  708;  33  W.  N.  C.  152;  Pulpit  v.  Shearman,  p.  322. 

Mallhcw.s,42IlI.  App.  561.]  (/)  Shearman,  8.  324.  [I  Thomp.  Nog. 

(c)  Kirth  V.   Howling  Iron   Co.,  ante  49S.] 

(cows  eating  Iron  fencing) ;  Lawrence  (fr)  Powell  f.  Salisbury,  2  Y.  A  J.  391 ; 

r,  Jenkins,  L.  R.  8  Q.  15.  247;  42  L.  J.  Q.  see  jud^'mentof  Byles.  J.,  In  Leo  r.  Ulley, 

B.  147  (cows  eating  yew  tree).— [Ewing  34  L.  J.  C.  P.  212,  211!  (horse  straying') ; 

*.  North  Versailles  Tp.,  146  Pa.  St.  309;  Firth  r.  Howling  Iron  Co.,  anU    (cows 

23  At.  Ilcp.  338.]  eating  Iron  fencing.) 

(d)  Boylo  V.  Tamlyn,  mipra;  Barber  (fc)  Bcssant  r.  G.  W.  Ry.  Co..  8  O.  B. 
r.  Whiteley,  34  L.  J.  Q.  B.  212;  Lawrence  X.  S.  368;  Chicago  Uy.  Co.  v.  UUoy,  33 
•.Jenkins,  (ui/ra;  [Tewksbury  v.  Buck-  lU.  410. 


110      NEGLECT   OF   DUTIES   EEQUIRIXG   ORDINARY   CARE. 

trespass.  A  man  is  bound  to  restrain  his  animals  from  tres- 
passing, and  is  liable  in  trespass  for  the  injuries  which  they 
do,  whether  his  fences  are  carefully  or  negligently  kept  (^). 
Eailway  companies  are  frequently  bound  by  their  acts 
to  keep  up  fences  for  the  protection  of  the  owners  of  cattle, 
not  for  protection  of  passengers  by  train  (k).  In  America 
it  seems  this  protection  is  usually  extended  to  all  owners, 
[89]  whether  their  land  is  contiguous  to  the  line  or  not 
(?) ;  but  in  England  the  protection  is  confined  to  adjoining 
owners  or  occupiers  (')n).  A  railway  company  agreed  with 
one  G.  to  fence  his  land  from  the  railway,  he  releasing  them 
from  their  statutory  obligation  in  that  respect.     They  made 

(i)    Whether   this    extends    to    tres-  (I)  Shearman,  s.  469.    [Dunkirk,  etc., 

passes  by  smaller  animals,  such  as  dogs,  R.     Co.     v.     Mead,     90    Pa.    St.    454; 

cats,  fowls,  etc.,  seems  doubtful.    See  McCall   v.    Chamberlain,   13   Wis.   637; 

Heed   V.    Edwards,    17   C.  B.  N.  S.  245.  Toledo,  etc.,  R.  Co.  r.  Gary,  37  Ind.  172; 

[The  owner   of    a  dog  which  killed  a  Marietta,  etc.,  R.  Co.  v,  Stephenson, 24 

domestic  animal  while  trespassing  upon  O.  S.  48.    See  infra.} 
the  close  of   another,  was   held  liable,  (wi)  Rickets  v.  East  India  Docks  Ry. 

though  he  did  not  know  of   its  vicious  Co.,  12  C.  B.  I(i0;  Dawson  v.  Midland  Ry. 

propensity,  Churnot  v.  Larson,  43  Wis.  Co.,  L.  R.  8  Exch.  8;  Marfell  v.  S.  W.  Ry. 

536.]  Co.,  29  L.  J.  C.  P.  315,  317.    See  Railways 

(fc)  Buxton  V.  N.  E.  Ry.  Co.,  L.  R.  3  Q.  Clauses  Act,  1845,  s.  68. 
B.  549;  37  L.  J.  Q.  B.   258;  Wiseman  v. 
Booker,  3  C.  P.  D.  184. 

A  parol  agreement  to  that  effect  would  not  be  binding. —  Wilder  v. 
Maine  Central  R.  Co.,  65  Me.  332;  Vandergrift  v.  Delaware  R.  Co.,  2 
Houst.  287;  St.  Louis,  etc.,  R.  Co.  v.  Todd,  36  111.  409;  Hunter  v. 
Burlington,  etc.,  Ry.  Co.,  76  la.  480;  41  N.  W.  Rep.  305. 

But  when  made  by  deed,  where  the  intent  to  charge  the  land  appears, 
such  an  agreement  is  a  covenant  running  with  the  land  binding  grantees, 
lessees,  tenants,  etc. —  Brown  v.  CofSn,  108  Mass.  175;  Gill  v.  Atlantic, 
etc.,  R.  Co.,  27  Ohio  St.  240;  Indianapolis,  etc.,  R.  Co.  v.  Shriner,  17 
Ind.  295;  Duffy  New  York  &  Harlem  R.  Co.,  2  Hilt.  496.  See  St.  Louis, 
I.  M.  &  S.  Ry.  Co.  V.  Walbrink,  47  Ark.  330;  1  S.  W.  Rep.  545.  But 
such  agreements  will  not  affect  subsequent  purchasers  without  actual 
notice,  unless  recorded.— Pittsburg,  C.  &  St.  L.  Ry.  Co.  v.  Bosworth, 
(Ohio),  13  N.  E.  Rep.  533. 

And  an  agreement  recited  in  a  record  of  proceedings  for  condemnation 
that  the  company  is  to  maintain  the  fence  runs  with  the  land. —  Huston 
V.  Cincinnati,  etc.,  R.  Co.,  21  Ohio  St.  235. 

In  some  States  the  obligation  imposed  by  such  statutes  has  been  held 
to  extend  only  to  the  owners  and  occupiers  of  the  adjoining  close. — 


KKLEASE  OF  STATLTOKY  DUTY  TO  FENCE.      Ill 

a  sufficieut  fence,  but  ue;^lcctccl  to  Uei'i)  it  ii)i,  imd  :i  cow 
beloiiirinjr  to  G.'s  tcnaDt  fell  into  the  ditch  ;iiul  was  kilU'd. 

Maynard  v.  Boston,  etc.,  R.  Co.,  115  Mass.  158;  Bemis  v.  Connecticut, 
etc.,  K.  Co.,  42  Vt.  375;  Cornwall  v.  Sullivan  U.  Co.,  28  N.  H.  ICl ;  Walsh 
c.  Virginia, otc,  H.  Co.,  8  Nev.  Ill ;  Pitlsburjj;!!,  etc.,  R.  Co.  v.  Mclhven, 
21  Ohio  St.  68t;;  McCoy  v.  Southern  Pac.  Co.  (Cal.),  20  Pac.  Rtp.  r.2'J; 
Baltimore  &  O.  Ry.  Co.  v.  Wood,  47  Ohio  St.  431;  24  N.  E.  Rep.  1077. 
This  rule  includes  a  bare  licensee.—  Summers  v.  Hannibal  &  St.  J.  R. 
Co.,  29  Mo.  App.  41 ;  Ilendrix  v.  St.  Joseph  &  St.  L.  Ry.  Co.,  38  Mo. 
App.  620. 

In  others  the  obligation  to  fence  extends  to  all. —  Toledo,  etc.,  R.  Co. 
».  Cary,  37  Ind.  112;  McCall  v.  Chaniberlaiu,  13  Wis.  G37;  see  Veerhusen 
V.  Chicago,  etc.,  Ry.  Co.,  63  Wis.  G89;  Duiil<irk  v.  Mead,  90  Pa.  St.  454; 
Corwin  V.  New  York,  etc.,  R.  Co.,  13  N.  Y.  42;  see  Marietta,  etc.,  R. 
Co.  V.  Stephenson,  24  01iio  St.  48;  Spinner  v.  New  York  Central,  etc.,  R. 
Co.,  67  N.  Y.  153;  Jackson  v.  St.  Louis,  etc.,  R.  Co.,  43  Mo.  App.  324; 
Oordon  v.  Chicago,  etc.,  Ry  Co.,  44  Mo.  App.  201. 

In  those  Stales  where  the  common-law  rule  obtains,  permitting  stock 
to  run  at  large  is  such  negligence  on  the  part  of  the  owner  as  to  bar 
bi.s  right  of  recovery  for  injuries  to  them,  unless  such  injury  was  wanton 
or  willful. —  Beach  on  Contributory  Negligence  Q2d  ed.),pp.  258,  282,  293; 
Railroad  Co.  v.  Skinner,  19  Pa.  St.  298;  Spinner  v.  New  York  Cent.,  etc., 
R.  Co.,  C7  N.  Y.  153;  Eames  v.  S;ilem,  etc.,  R.  Co.,  98  Mass.  500;  Bennett 
t.  Chicago,  etc.,  R.  Co.,  19  Wis.  145. 

In  those  States  where  the  so-called  American  rule  obtains,  railway 
companies  are  liable  only  for  the  ordinary  negligence  of  their  servants 
toward  straying  cattle.— Illinois  Central  R.  Co.  v.  Bull,  72  111.  637; 
Nashville,  etc.,  R.  Co.  v.  Comans,  45  Ala.  437;  Gill  v.  Atlantic,  etc.,  R. 
Co.,  27  Ohio  St.  240;  Hawker  v.  Baltimore,  etc.,  R.  Co.,  15  W.  Va.  628; 
Swearinger  TJ.  R.  Co.,  64  Mo.  73;  Durham  v.  Wilmington,  etc.,  R.  Co.,  82 
N.  C.  352;  Mi.ssissippi,  etc.,  R.  Co.  v.  Miller,  40  Miss.  45;  Talbot  v.  Min- 
neapolis, etc.,  R.  Co.,  82  Mich.  GG;  45  N.  W.  Rep.  1113. 

Certainly  for  gross  negligence. —  Chicago,  etc.,  R.  Co.  v.  Kdlam,  92  111. 
246;  34  Am.  Rep.  128;  L.  R.  &  F.  S.  Ry.  Co.  v.  Finley,  37  Ark.  503. 

Pence. —  A  railroad  company  is  under  no  common-law  obligation  to 
fence  It.s  track.— McDonald  v.  PIttstleld,  etc.,  R.  Co.,  115  Mass.  504; 
Hard  v.  Rutland,  etc.,  R.  Co.,  25  Vt.  110;  Perkins  v.  Ea.ston,  etc.,  R. 
Co.,  29  Mo.  307;  Mills  v.  Stark,  4  N.  H.  512;  Terry  v.  New  York,  etc.,  R. 
Co.,  22  Barb.  579. 

There  are  no  general  statutes  compelling  railroad  companies  to  fence 
In  Louisiana.— Stevenson  v.  New  Orleans,  etc.,  R.  Co.,  35  La.  Ann.  498. 

In  Maryland,  where  the  common-law  rule  that  the  owner  of  cattle 
must  keep  them  within  his  own  close  prevails,  anil  railroad  companies 
are  not  n-quircd  to  fence,  it  was  held  that  one  whose  cattle  strnyed  upon 
a  railroad  and  were  run  over  by  a  train  which  was  damaged  by  the  coi- 


112      NEGLECT   OF   DUTIES   REQUIRING   ORDINARY   CARE. 

It  was  held  that  the  agreement  did  not  exonerate  them  from 
their  liability  under  the  Railways  Clauses  Act,  8  &  9  Vict. 

lision  was  liable  to  the  company. —  Annapolis,  etc.,  R.  Co.  v.  Baldwin, 
60  Md.  88;  47  Am.  Eep.  711;  see  Housatonic,  etc.^  E.  Co.  v.  Knowles, 
30  Conn.  313;  N.  Y.  &  Erie  R.  Co.  v.  Skinner,  19  Pa.  St.  298;  Drake  v, 
Pittsburgh,  etc.,  R.  Co.,  51  Pa.  St.  240;  Northeastern  R.  Co.  u.  Sineath, 
8  Rich.  185;  Sinram  v.  Pittsburgh,  etc.,  R.  Co.,  28  Ind.  244;  Hannibal, 
etc.,  R.  Co.  V.  Kenny,  41  Mo.  272,  and  Sherman  U.Anderson,  27  Kan.  333; 
41  Am.  Rep.  414. 

In  most  of  the  States  there  are  statutes  requiring  railway  companies 
to  fence  their  tracks. 

Connecticut.— Bnlkley  v.  N.  Y.,  etc.,  R.  Co.,  27  Conn.  480. 

Illinois. —  Indianapolis,  etc.,  R.  Co.  v.  Hall,  88  111.  368;  Cannon  v. 
Louisville,  etc.,  R.  Co.,  34  111.  App.  640;  Indiana  &  I.  S.  R.  Co.  v.  Samp- 
son, 31  111.  App.  513. 

Indiana. —  Cincinnati,  etc.,  R.  Co.  v.  Hildreth,  77  Ind.  504;  Chicago 
&  S.  E.  Ry.  Co.  V.  Abbott,  10  Ind.  App.  99;  37  N.  E.  Rep.  557;  Midland 
Ry.  Co.  V.  Gascho,  7  Ind.  App.  407;  34  N.  E.  Rep.  643;  Jeffersonville,  M. 
&  I.  R.  Co.  V.  Peters  (Ind.),  27  N.  E.  Rep.  229;  Ohio,  I.  &  W.  Ry.  Co.  v. 
Heady  (Ind.  App.),  28  N.  E.  Rep.  212;  5  Ind.  App.  328;  32  N.  E.  Rep.  213; 
Louisville,  E.  &  St.  L.  R.  Co.  v.  Hart,  2  Ind.  App.  130;  28  N.  E.  Rep.  218. 

Iowa. —  Pearson  v.  Milwaukee,  etc.,  R.  Co.,  45  la.  497. 

Kansas. —  Atchison,  etc.,  R.  Co.  v.  Cash,  27  Kan.  587;  Missouri  Pac. 
Ky.  Co.  V.  Ricketts,  45  Kan.  617;  26  Pac.  Rep.  50;  Missouri  Pac.  Ry.  Co. 
V.  Eckel,  49  Kan.  794;  31  Pac.  Rep.  693. 

Jfaine.— Wilder  v.  Maine,  etc.,  R.  Co.,  65  Me.  333;  20  Am.  Rep.  698. 

Massachusetts. — Maynard  v,  Boston,  etc.,  R.  Co.,  115  Mass.  468;  16 
Am.  Rep.  119. 

Michigan.  —  Grand  Rapid^,  etc.,  R.  Co.  v.  Monroe,  47  Mich.  152; 
Parker  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  93  Mich.  607;  53  N.  W.  Rep.  834; 
Stern  v.  Michigan  Cent.  R.  Co.,  76  Mich.  591;  43  N.  W.  Rep.  587. 

Minnesota.  — Fitzgerald  v.  St.iPaul,  etc.,  R.  Co.,  29  Minn.  336;  43  Am. 
Rep.  212;  Finch  v.  Chicago,  etc.,  Ry.  Co.,  46  Minn.  250;  48  N.  W. 
Rep.  915. 

Missouri.  —  Silver  v.  Kansas  City,  etc.,  R.  Co.,  78  Mo.  528;  Cole 
V.  Chicago,  B.  &  Q.  R.  Co.,  47  Mo.  App.  624;  Baker  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.,  47  Mo.  App.  2G0;  McNear  w.  Wabash  Ry.  Co.,  42  Mo,  App.  14. 

New  Hampshire.  —  Cressey  v.  Northern,  etc.,  R.  Co.,  56  N.  H.  390; 
47  Am.  Rep.  227. 

New  York.  —  Spinner  v.  New  York,  etc.,  R.  Co.,  67  N.  Y.  153. 

Nevada.  —  Walsh  v.  Virginia,  etc.,  R.  Co.,  8  Nev.  111. 

OMo.  — Cincinnati,  etc.,  R.  Co.  v.  Smith,  22  Ohio  St.  227;  10  Am. 
Rep.  722. 

Oregron.  —  Sullivan  v.  Oregon  Ry.  &  Nav.  Co.,  19  Ore.  319;  24  Pac. 
Eep.  408. 


8TATUT0KY    DUTY    TO    riCXCK  —  EXCEITIONS.  113 

c.  20,  8.  68,  to  maintain  tho  fence  and  ditch  for  the  hcnclit 
of  the  occupier  (?0- 

(ti)  Corry  r.  G.  W.  Uy.  Co.,  6  Q.  IJ.  D.  'il? ;  7  Q.  \i.  I).  322. 

irtafi.  — Stlrapson  v.  Union  Pac.  Ry.  Co.,  8  Utah,  349;  31  Pac.  Itep.  449. 

y ennont.  —  Congdon  v.  Central,  etc.,  It.  Co.,  6G  Vt.  390;  48  Am. 
Rep.  7;»3. 

Washington.  — Oregon  Ry.  &  Nav.  Co.  v.  Dacres,  1  Wash.  I'JO;  23  Pac. 
Rep. 415. 

Wisconsin.  —  Veerhusen  v.  Chicago,  etc.,  R.  Co.,  53  Wis.  689. 

Railroa'l  companies  are  not  generally  required  to  fence  their  tracks  at 
station  grounds  and  their  approaches.  — Chicago,  etc.,  R.  Co.  v.  Camp- 
bell, 47  Mich.  2G5;  11  N.  W.  Rep.  152;  Atchison,  etc.,  R.  Co.  v.  Griffls, 
28  Kan.  53'J;  Swearlngen  v.  Missouri  R.  Co.,  G4  Mo.  73;  Toledo  R.  Co. 
V.  Chapin,  66  111.  504;  McGrath  v.  Detroit,  etc.,  R.  Co.,  S.  C.  Mich.,  24 
N.  W.  Rep.  854;  Chicago,  B.  &  Q.  R.  Co.  v.  Hans,  111  HI.  114;  Smith 
V.  Minneapolis  &  St.  L.  R.  Co.,  37  Minn.  103;  33  N.  W.  Rep.  316;  Peters 
0.  Stewart,  72  Wis.  133;  3<J  N.  W.  Rep.  380;  Dixon  v.  New  York  C.  &  H. 
R.  Co.,  4  N.  Y.  S.  Rep.  296;  Louisville,  E.  &  St.  L.  C.  R.  Co.  v.  Scott, 
34  111.  App.  635;  Straub  v.  Edely,  47  Mo.  App.  189;  Cleveland,  C,  C.  & 
St.  L.  Ry.  Co.  V.  Aijney,  43  111.  App.  92;  Cleveland,  C,  C.  &  St.  L. 
Ry.  Co.  V.  Myers,  43  111.  App.  251.  (This  rule  does  not  include  flag 
sUtlons.  — Hurt  v.  St.  Paul,  M.  &  M.  Ry.  Co.,  3'J  Minn.  485;  40  N.  W. 
Rep.  613;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Wallace,  2  Tex.  Civ.  App.  270;  21 
8.  W.  Rep.  973,  following  I.  &  G.  N.  R.  Co.  v.  Cocke,  64  Tex.  154;  or 
'•switch  limits,"  Jeffersonville,  M.  &  I.  R.  Co.  v.  Peters,  1  Ind.  App.  69; 
27  N.  E.  Rep.  299.) 

At  crossings  of  public  streets  in  cities  or  towns.  —  Long  v.  Central 
Iowa  Ry.  Co..  S.  C.  la.,  21  N.  W.  Rep.  122;  see  Blanford  v.  Minneapolis 
&.  St.  L.  Ry.  Co.,  71  la.  310;  32  N.  W.  Rep.  357. 

At  highway  crossings.  —  Missouri,  etc.,  R.  Co.  v.  Leggett,  27  Kan. 
828;  Louisville,  etc.,  R.  Co.  v.  Francis,  58  Ind.  389;  Walton  r.  St.  Louis, 
etc.,  R.  Co.,  67  Mo.  56;  Soward,  etc.,  R.  Co.,  30  la.  651 ;  Missouri  Pac. 
Ry.  Co.  V.  Kocher,  46  Kan.  272;  26  Pac.  Rep.  731;  Sather  v.  Chicago, 
etc.,  Ry.  Co.,  40  Minn.  91;  41  N.  W.  Rep.  458. 

At  private  roads  extending  across  track  and  connecting  with  public 
highway.  — Pittsburgh,  etc.,  R.  Co.  v.  Cunnington,  39  Ohio  St.  327; 
Indianapolis,  etc.,  R.  Co.  v.  Thomas,  84  Ind.  194;  Roberts  v.  Qulncy, 
etc.,  R.  Co.,  43  Mo.  App.  287,  but  see  Jenkins  v.  Chicago  &  A.  R.  Co.,  27 
Mo.  App.  578. 

Wlihin  the  limits  of  Incorporated  cities  or  towns  In  some  States. — 
Chicago,  etc.,  R.  Co.  v.  Rice,  71  111.  667;  Edwards  v.  Hannibal,  etc.,  R. 
Co.,  66  Mo.  571;  liogers  v.  Chicago,  etc.,  R.  Co.,  26  la.  558;  Chicago, 
B.  &  Q.  R.  Co.  V.  James,  26  Neb.  188;  41  N.  W.  Rep.  992;  Chicago,  B. 
*Q.  R.  Co.  r.  Ilogan,  30  Neb.  686;  46  N.  W.  Rep.  1015. 


114      NEGLECT    OF    DUTIES    REQUIRING    ORDINARY    CARE. 

They  are  also  frequently  bound  by  their  acts  to  fence  off, 
[90]     by  gates  or  otherwise,  a  highway  crossing  the  line 

The  Supreme  Court  of  Minnesota  very  properly  held,  in  the  case  of 
La  Paul  V.  Truesdale  (44  Mi-nn.  275;  46  N.  W.  Rep.  303),  that  a  railroad 
company  should  not  be  released  from  the  statutory  duty  of  fencing  its 
track,  where  practicable,  by  the  mere  fact  that  the  track  is  within  cor- 
porate limits. 

By  the  Illinois  statute  railroads  are  bound  to  fence  "except  at  the 
crossings  of  public  roads  and  highways,  and  within  such  portions  of 
incorporated  towns  or  villages  as  are  or  may  hereafter  be  laid  out  and 
platted  into  lots  and  blocks."  In  Chicago,  Burlington  and  Quincy  R.  Co. 
V.  Haus,  111  III.  114,  this  was  held  not  to  require  fencing  public  stations 
or  depot  grounds,  although  not  within  villages,  towns  or  cities,  nor 
at  highway  crossings.  So  much  of  Chicago,  Milwaukee  and  St.  Paul 
R.  Co.  V.  Dumser,  109  111.  402,  as  intimates  a  different  doctrine,  was 
disapproved. 

But  in  most  of  the  States  statutes  require  that  cattle-guards  shall  be 
constructed  at  all  highway  and  farm  crossings. —  Spinner  v.  New  York 
Central,  etc.,  R.  Co.,  67  N.  Y.  153;  Perkins  v.  Railroad  Cos.,  29  Me.  307; 
Toledo,  etc.,  R.  Co.  v.  Owen,  43  Ind.  405;  Chicago,  K.  &  N.  Ry.  Co. 
V.  Behney,  48  Kan.  47;  28  Pac.  Rep.  980;  Nelson  v.  St.  Louis  &  S.  F. 
Ry.  Co.,  49  Kan.  165;  30  Pac.  Rep.  178;  Parker  v.  Lake  Shore  &  M.  S. 
Ry.  Co.,  93  Mich.  607;  53  N.  W.  Rep.  834;  Caldon  v.  Chicago,  etc.,  Ry. 
Co.,  85  Wis.  527;  55  N.  W.  Rep.  955;  Ham  v.  Newberg,  D.  &  C.  R.  Co., 
69  Hun,  137;  23  N.  Y.  S.  Rep.  197;  Cole  v.  Chicago,  B.  &  Q.  R.  Co.,  47 
Mo.  App.  624.  (But  not  at  private  or  farm  crossings.  —  Omaha  &  R.  D. 
R.  Co.  V.  Severin,  36  Neb.  318;  46  N.  W.  Rep.  842.) 

In  Iowa  it  is  held  a  railroad  must  fence  its  road  against  stock  running 
at  large  on  the  line  of  its  road  within  the  limits  of  a  corporate  town  and 
outside  of  the  first  street  or  alley  in  such  town. —  Coyle  v.  Chicago,  etc., 
R.  Co.,  62  la.  518;   17  N.  W.  Rep.  771. 

But  it  has  no  right  to  fence  its  tracks  where  they  cross  a  public  street 
in  a  city  or  town,  and  the  owner  of  an  animal  killed  at  such  point  cannot 
recover  therefor  on  the  ground  of  the  failure  of  the  company  to  fence. — 
Long  V.  Central  Iowa  Ry.  Co.,  64  la.  657;  21  N.  W.  Rep.  122. 

A  railroad  company  is  not  relieved  of  the  obligation  of  fencing  its 
track  because  the  work  of  construction  is  in  the  hands  of  a  contractor 
and  not  yet  completed. —  Silver  v.  Kansas  City,  etc.,  R.  Co.,  78  Mo.  528. 
Nor  by  the  negligent  omission  of  proper  guards  by  the  contractor.— 
Chicago,  K.  &  W.  R.  Co.  v.  Hutchinson,  45  Kan.  186;  25  Pac.  Rep.  676. 
Nor  by  a  contemporaneous  act  restraining  animals  from  running  at 
large.— Cole  v.  Chicago,  B.  &  Q.  R.  Co.,  47  Mo.  App.  624. 

Where  railroads  are  required  to  fence,  they  must  fence  on  both  sides 
of  their  road  (Tredway  v.  Sioux  City,  etc.,  R.  Co.,  43  la.  527;  Wabash, 
etc.,  R.  Co.  V.  Zeigler,  108  111.  304;  Eames  v.  Salem,  etc.,  R.  Co.,  98  Mass. 


8UFFICIENCV    OF    FKNCE.  115 

upon  :i  level,  ;iiul  they  become  li;il)le  for  ucgligenlly 
omitting    to     [PI]      keep  such  gates    closed  where  cattlo 

560;  Ohio  &  M.  Ry.  Co.  v.  People,  121  III.  483;  13  N.  E.  Rep.  23i;),  unless 
a  fence  would  liiUTfeiv  with  tlie  busiuess  of  an  uiljaciiit  owner  (Olilo, 
etc.,  R.  Co.  V,  Rowland,  50  Ind.  349),  or  the  running  of  the  roail,  as  a 
switch  (Evausville,  etc.,  R.  Co.  r.  Willis,  93  Ind.  507),  or  where  the  track 
is  crossed  by  a  county  road  and  depot  (Cincinnati,  etc.,  R.  Co.  v.  WootI, 
■S3  Ind.  693),  but  mere  difllculty  or  Inconvenience  to  the  company  creates 
no  exception  under  the  Kansas  statute  (Atchinson,  etc.,  R.  Co.  v.  Shaft, 
li  Pac.  Rep.  908),  and  fact  that  the  land  on  either  side  of  defendant's 
track  is  occupied  by  the  tracks  of  other  companies  is  no  excuse  (Kelver 
r.  New  York,  etc.,  R.  Co.,  12  N.  Y.  S.  Rep.  723),  but  it  may  be  impossil)le 
to  fence  (Jennings  v.  St.  Joseph  &  St.  L.  Ry.  Co.,  37  Mo.  App.  (J51). 
la  Indiana  it  was  held  where  an  animal  was  killed  by  cars  having 
entered  upon  a  railroad  at  a  place  not  fenced  on  either  side,  but  where 
it  was  practicable  to  fence  on  one  side,  the  company  was  not  liable,  under 
§§  4025-4032,  R.  S.  1881.— Indiana,  etc,  R.  Co.  t;.  Leak,  89  Ind.  696; 
Wabash,  etc.,  R.  Co.  v.  Nice,  99  Ind.  152. 

The  fact  that  a  railroad  track  runs  parallel  with  and  adjoining  a  public 
highway  or  another  railroad  is  held  in  Missouri  not  to  exempt  it  from  the 
duty  of  fencing  when  it  passes  through  inclosed  or  cultivated  llelds. — 
RozcUe  V.  Hannibal,  etc.,  R.  Co.,  79  Mo.  349;  Emmersou  u.  St.  Louis  & 
H.  Ry.  Co.,  35  Mo.  App.  621.  So  in  Kansas,  Missouri  Pac.  Ry.  Co.  v. 
Eckel,  49  Kan.  794;  31  Pac.  Rep.  693.  So  in  New  York,  Kelver  v.  New 
York,  etc.,  R.  Co.,  126  N.  Y.  365;   27  N.  E.  Rep.  553. 

In  Kansas  a  railroad  in  order  to  be  absolved  from  liability  for  stock 
killed  by  it  in  the  operation  of  its  road  must  be  '<  enclosed  with  a  good 
and  lawful  fence  to  prevent  such  animals  from  being  on  such  road." — 
Atchison,  etc.,  R.  Co.  v.  Shaft,  33  Kan.  521;  21  C.  L.  J.  249. 

Building  fences  along  the  sides  of  the  road  is  not  alone  sufficient. — 
Id. 

In  Minnesota  the  statute  requiring  railroad  companies  to  fence  their 
roads  and  to  build  cattle-guards  at  wagon  crossings  applies  as  well  to 
the  limits  of  incorporated  cities  and  villages  as  the  country. —  Greely  v. 
St.  Paul,  etc.,  Ry.  Co.,  33  Minn.  116;  22  N.  W.  Rep.  179. 

A  railroad  company  is  not  bound  to  erect  a  fence  to  keep  children  off 
Ita  track.— Fitzgerald  v.  St.  Paul,  etc.,  Ry.  Co.,  29  Minn.  306;  43  Am. 
Rep.  212;  Keyser  r.  Chicago,  etc.,  Ry.  Co.,  56  Mich.  359;  23  N.  W.  Rep. 
811;  Walkenhauer  r.  Chicago,  etc.,  R.  Co.,  17  Fed.  Rep.  136.  See  Over- 
holtt.  Vieths,  93  Mo.  4-.>2;  6  S.  W.  Rep.  74. 

Sufflciency  of  Fence. —  Where  the  statute  does  not  specify  the  kind  of 
fence  to  be  built  the  company  may  build  such  a  fence  as  is  usual  in  that 
locality  and  is  regarded  as  sufficient  to  keep  cattle  out  or  any  fence 
which  is  sufficient  for  that  pur[iose  and  which  Is  not  injurious  to  adjoin- 
ing proprietors,  and   it  must  be  maiiuained  without  negligence;  all  of 


116      NEGLECT    OF   DUTIES    REQUIRING   ORDINARY   CARE. 

are  straying  upon  such  highway  or  are  lawfully  traveling 
along  it  (o).     But,     [92]     where  a  highway  runs  parallel 

(o)  Fawcett  V.   North   Midland  Ry.  529;  Russell  v.  Hanley,  20Ia.  49.    Where 

Co.,  16  Q.  B.  610.    As  to  level  crossings,  they  are   for   the   convenience  of  the 

see  the  Railways   Clauses   act,  1SG3  (25  land-owner  and  he   falls  to  keep  them 

&  27  Vict.  c.  92),  ss.  5,  6,  7.    [Spinner  v.  closed,  the  company  is  not  liable.   Bond 

N.  Y.  Cent.  R.  R.  Co., 67  N.  Y.  153;  Chi-  v.  Evansville,  etc.,  R.  Co.,  100  Ind,  301.1 
cago,  R.  R.  Co.,   etc.,  v.   Magee,  60  111. 

which  are  usually  questions  for  the  jury. —  Bronson  v.  Coffin,  108  Maes. 
175;  Enright  v.  San  Francisco,  etc.,  R.  Co.,  33  Cal.  230;  Ferris  v.  Vaa 
Buskirk,  18  Barb.  397;  Leyden  v.  New  York,  etc.,  R,  Co.,  55  Hun,  114;  8 
N.  Y.  S.  Rep.  187;  Leebrick  v.  Republican  Val.  &  S.  W.  R.  Co.,  41  Kaa. 
756;  21  Pac.  Rep.  796;  Pennsylvania  Co.  v.  Lindley,  2  Ind.  App.  Ill;  28 
N.  E.  Rep.  IOC;  Fremont,  E.  &  M.  V.  R.  Co.  v.  Pounder,  36  Neb.  247;  54 
N.  W.  Rep,  509;  Chicago,  B.  &  Q.  R.  Co.  v.  Finch,  42  111.  App.  90;  Lake 
Erie&  W.  Ry.  Co.  v.  Fishback,  5  Ind.  App.  403;  32  N.  E.  Rep.  346;  Ohio, 
I.  &  W.  Ry.  Co.  V.  Neady,  5  Ind.  App.  328;  32  N.  E.  Rep.  213.  The 
same  rule  applies  to  the  erection  and  maintenance  of  cattle-guards. — 
Wabash  R.  Co.  v.  Ferris,  6  Ind.  App.  30;  32  N.  E.  Rep.  112;  Schuyler  »• 
Fitchburg  R.  Co.,  65  Hun,  622;  20  N.  Y.  S.  Rep.  287;  Parker  v.  Lake 
Shore  &  M.  S.  Ry.  Co.,  93  Mich.  607;  53  N.  W.  Rep.  834. 

Various  statutes  prescribe  the  kind  of  fence  to  be  maintained.  In 
New  York  a  crooked  or  "  Virginia  "  fence  has  been  held  sufficient. —  Fer- 
ris V.  Van  Buskirk,  18  Barb.  397. 

In  Missouri  a  post  and  plank  fence  four  and  a  half  feet  high  is  a  law- 
ful fence. —  King  v.  Chicago,  etc.,  R.  Co.,  79 Mo.  328. 

The  jury  may  without  evidence  of  the  fact  declare  a  fence  two  feet 
eight  inches  hiiih,  to  be  insufficient. —  Leyden  v.  New  York  C.  &  H.  R.  R. 
Co.,  55  Hun,  114;  8  N.  Y.  S.  Rep.  187. 

A  bluff,  hedge  or  a  ditch,  if  sufficient  to  keep  cattle  from  entering 
upon  the  track  in  Iowa  (Hilliard  u.  Chicago,  etc.,  R.  Co.,  37  la.  442; 
Collier  v.  Georgia  R.  R.  Co.,  76  Ga.  611),  and  under  Iowa  code,  §  1289, 
a  fence  reasonably  sufficient  to  prevent  live  stock  coming  upon  the  track 
is  held  lawful.—  Shellabarger  v.  Chicago,  etc.,  R.  Co.,  23  N.  W.  Rep.  168. 

In  Minnesota  a  wire  fence  constructed  in  accordance  with  the  pro- 
visions of  Gen.  St.  Minn.  1878,  c.  18,  §2,  is  held  sufficient. —  Haver- 
son  V.  Minneapolis,  etc.,  Ry.  Co.,  19  N.  W.  Rep.  392. 

Willow  trees  are  held  not  a  sufficient  fence. —  Brock  u.  Connecticut, 
etc.,  R.  Co.,  35  Vt.  373. 

Formerly  in  Iowa  and  Kansas  railroads  were  required  to  fence  against 
swine.— Lee  ».  Minneapolis,  etc.,R.  Co.,  66  la.  131;  23  N.  W.  Rep.  299; 
Missouri  Pac.  Ry.  Co.  v.  Roads,  33  Kan.  640;  7  Pac.  Rep.  213.  In  Iowa 
this  rule  has  been  changed  by  Rev.  Code,  §  1507,  see  Panther  v,  Traumaa 
(la.),  56  N.  W.  Rep.  289. 

In  Kentucky  the  Act  of  May,  1890,  forbids  that  any  wire  other  than 


DUTY    TO    KKEP    IN'    KKI'MU.  117 

with  and  adjoining  to  tlio  railway,  tho  owners  of  cattle 
coming  out  of  fields  beyond      [•'•5J      the  iiigliway  are  not 

smooth  and  round  wire  shall  be  used  In  fences  on  the  public  roads.  See 
Commonwealth  r.  Harrett  (Ky.),  17  S.  W.  Kup,  3:iG. 

Duty  to  Keep  In  Repair. —  A  railway  company  is  bound  to  keep  Its 
fences  and  cattle-j^uards  in  repair. —  Bennett  v.  Waba.sh,  etc.,  R.  Co.,  01 
la.  356;  Miller  v.  Chicago,  etc.,  R.  Co.,  24  N.  W.  Rep.  SG;  Davis  v.  Han- 
nibal &,  St.  J.  Ry.  Co.,  19  Mo.  App.  425;  Taft  ».  New  York,  P.  &  B. 
R.  Co.,  157  Mass.  297;  32  N.  E.  Rip.  lf.8;  Peoria,  D.  &  E.  Ry.  Co.  v. 
Babbs,  23  111.  App.  454;  Gould  v.  Bangor  &  P.  R.  Co.,  82  Me.  122;  19  Atl. 
Rep.  94. 

It  mast  keep  Its  cattle-guards  free  from  accumulations  of  snow  and 
Ice.— Dunnigan  v.  Chicago,  etc.,  R.  Co.,  18  Wi.s.  2M;  IJlair  v.  Minne- 
apolis, etc.,  Ry.  Co.,  24  N.  W.  Rep.  558;  Schuyler  v.  Fitchburg  R.  Co.,  G5 
Ilun,  G22;  20  N.  Y.  S.  Rep.  287. 

While  a  railroad  company  Is  bound  to  keep  Its  fences  in  repair,  yet 
havhiij  built  a  sufBcient  fence,  It  has  a  right  to  presume  that  It  will  re- 
main In  repair  for  a  reasonable  time  and  Is  not  bound  to  keep  constant 
watch  over  It,  and  the  question  whether  It  has  kept  a  sufUcieut  watch  or 
not  Is  for  the  jury.—  Illinois  Central  R.  Co.  v.  McKee,  43  111.  119. 

Whether  an  Inspection  of  fences  every  two  days  Is  sulllcient  exercise 
of  diligence  in  this  respect  is  a  question  of  fact  to  be  determined  by  the 
jury  with  reference  to  the  circumstances  of  the  case. —  Evans  v.  St.  Paul, 
etc.,  R.  Co.,  30  Minn.  489. 

Where  a  gate  at  a  farm  crossing  had  been  out  of  order  for  weeks,  and 
stock  entering  throush  it  upon  defendant's  track  were  there  killed;  it 
was  held  that  defendant  was  liable. —  Chisholm  v.  Northern  Pac.  R.  Co., 
53  Minn.  122;  54  N.  W.  Rep.  1061. 

Where  a  fence  which  was  washed  away  by  a  storm  was  not  repaired 
In  a  day  when  it  could  have  been  repaired  in  an  hour,  it  was  held  that 
the  company  was  liable  for  injury  to  cattle  on  the  track. —  Peet  o. 
Chicago,  etc.,  Ry.  Co.,  88  la.  520;  55  Mo.  Rep.  508. 

For  cases  holding  the  railroad  liable,  on  special  facts,  see  Hogan  v. 
Kentucky  Union  Ry.  Co.  (Ky.),  21  S.  W.  Rep.  242;  Shotwell  r.  St. 
Joseph  &  St.  L.  Ry.  Co.,  37  Mo.  App.  654;  San  Antonio  &  A.  P.  Ry.  Co. 
r.  Knncpfli,  82  Tex.  270;  17  S.  W.  Rep.  1052. 

Where  It  ajipeared  that  the  section  foreman  had  gone  over  the  road  in 
the  forenoon,  and  that  the  fence  was  burned  about  noon  and  cattle  strayed 
on  the  track  and  were  killed  about  six  o'clock  and  that  the  section  man 
did  not  know  of  the  burning  of  the  fence  until  the  next  morning.  It  was 
held  that  the  railroad  company  was  not  chargeable  with  negligence. — 
Toledo,  etc.,  R.  Co.  v.  Eder,  45  Mich.  329. 

The  pi  lintlff  must  show  that  the  company  knew  of  the  defect  or  cir- 
cumstances which  show  that  the  company  ouijht  to  have  known  It. — 
Toledo,  etc.,  R.  Co.  v.  Cohen,  44  Ind.  444;   Perry  v.  Dubuque,  etc.,  R. 


118       NEGLECT    OF    DUTIES    REQUIRING    ORDINARY    CARE. 

owners  or  occupiers  of  adjoining  land,  but  the  highway 
is  the  adjoining  hmd  and  the  railway  company  is  not 
liable  (/»). 

tp)  Mancl.     Sheff.  A   Line.    Ey.    v.  company  would  not  be  relieved  of  the 

WaUls    11  C    B  -'13     It  the  cattle  were  duty  of  fencing  lu  some  States  In  this 

lawfully  paislng  along  the  highway,  it  country.    Rozelle  v.  Hannibal,  etc.,  U. 

•e«m8  iho  owner  would  be  an  occupier  Co.,  79  Mo.  349 ;  Indianapolis,  etc.,  U.  R. 

of  iho  highway,  and  the  company  would  Co.  v.  McKinncy,  24  Ind.  283 ;  Indiana- 

bo  liable    see    U   C.  IJ.  2->4,  supra;  and  polls,  etc.,  R.  R.  Co.  v.  Guard,  24  Ind.  222^ 

sec  Midland  Ry.  Co.  f.  Dakln,  17  C.  15.  where  the  protection  is  extended  to  all 

136.     [Under    such   circumstances   the  owners.— Note  i,  a«fe.] 


Co.,   36  la.   102;   Indiana,  I.  &  I.  Ry.  Co.  v.  Dooling,  42  111.  App.  63; 
Peoria,  D.  &  E.  Ky.  Co.  v.  Aten,  43  111.  App.  68. 

Proximate  Cause.—  For  cousequential  damages  resulting  from  fright 
to  animals  not  caused  by  actual  collision  or  auy  negligence  or  willful 
misconduct  on  the  part  of  the  servants  of  the  company  the  company  i* 
not  liable.  As  where  a  horse  got  upon  a  railroad  track  for  want  of  a. 
fence  and  was  frightened  by  the  approach  of  a  train,  and  in  its  flight  was 
Injured  by  jumping  a  cattle-guard  or  coming  in  contact  with  a  wire  fence, 
It  was  held  the  owner  could  not  recover.—  Schertz  v.  Indianapolis,  etc., 
Ry.  Co.,  107  111.  577.  S.  P.,  Dooley  v.  Missouri  Pac.  Ry.  Co.,  36  Mo.  App. 
381.    See  Missouri  Pac.  Ry.  Co.  v.  Eckel,  49  Kan.  794;  31  Pac.  Rep.  693. 

Under  the  New  York  statutes,  it  is  held  that  the  injury  must  be  caused 
by  some  act  on  the  part  of  the  company  or  its  agents;  and  where  an  ani- 
mal injures  itself  on  the  track,  as  by  falling  through  a  bridge,  the  com- 
pany will  not  be  liable  (Knight  v.  New  York,  etc.,  R.  Co.,  1  N.  E.  Rep., 
108);  likewise  under  the  statute  of  Tennessee  (Holder  v.  Chicago,  etc, 
R.  Co.,  11  Lea,  176),  Missouri  (Hughes  v.  Hannibal,  etc.,  R.  Co.,  66  Mo. 
3L'5);  Iowa  (Kraus  v.  B.  C.  R.  &  N.  R.  Co.,  55  la.  338),  and  Nebraska.— 
Burlington,  etc.,  R.  Co.  v.  Shoemaker,  S.  C.  Neb.,  25  N.  W.  Rep.  365.  A 
railroad  is  liable  for  damages  to  crops  resulting  from  tearing  down  a 
fence  on  Its  right  of  way  just  purchased  from  the  owner  of  the  crops. — 
Chattanooga,  R.  &  C.  R.  Co.  v.  Brown,  84  Ga.  256;  10  S.  E.  Rep.  730. 

Under  the  Minnesota  statutes  the  liability  of  a  railroad  company  for 
injuries  to  animals  caused  by  a  failure  to  fence,  is  not  confined  to  inju 
rles  caused  by  collisions  with  trains,  but  extends  to  any  injuries  to 
animals  gutting  on  the  track  which  might  naturally  and  reasonably  be 
expected  to  result  from  such  neglect,  in  view  of  the  character  and  condi- 
tion of  the  railroad  and  the  uses  to  which  it  is  to  be  put;  and  where  a 
colt  got  on  the  track  and  broke  his  leg  by  getting  his  foot  into  a  small 
hole  no  larger  than  his  foot,  it  was  held  the  company  was  not  liable. — 
Nebon  t>.  Chicago,  etc.,  Ry.  Co.,  30  Minn.  74. 

But  where  cattle  are  frightened  by  a  train  and  run  upon  the  track  and 
arc  killed,  the  company  l.s  liable  for  its  neglect  to  fence,  as  it  is  required 
to.—  LoulBvllle,  E.  &  St.  L.  R.  Co.  v.  Hart,  2  Ind.  App.  130;  28  N.  E. 


CONTItlBUTORY    NEGLIGENCE.  11S> 

[94]  Where  cjittlo  aio  hy  prnnission  of  llu'  railway 
coinpuuy  upon  land  of  their  own  adjoining  the  railway,  iho 

Rt'p.  218.     See  L<)lll^^vlIle  &  N.  H.  Co.  t-.  Shclton,  4;]  III.  App.  220;  Graham 
I-,  Prt'sUlent,  etc.,  of  1).  &  II.  Co.,  iV,  Hun,  :JH(J. 

Contributory  Negrllgrence. —  In  lho.se  States  where  the  commou-Iaw 
iiile  prevails  reiiuiriiig  owners  of  cattle  to  restrain  them,  the  contributory 
ueullKonce  of  tiie  owners  In  failini;  to  restrain  tliem  will  generally  pre- 
vent a  recovery  from  a  railway  company  ui)on  whose  track  they  have 
bt-en  killed  or  injured. —  Johnson  v.  Chicago,  etc.,  K.  Co.,  21)  Minn. 
426;  Wilder  v.  Maine,  etc.,  K.  Co.,  «5  Me.  533;  McDonnell  v.  Piltsfleld, 
etc.,  U.  Co.,  115  Mass.  5iU  ;  Mayberry  v.  Concoril  R.  Co.,  47  N.  II.  391; 
Giles  r.  Boston,  etc.,  II.  Co.,  55  N.  II.  552;  Trow  v.  Vermont,  etc.,  H.  Co., 
24  Vt.  488;  Lawrence  v.  Milwaukee,  etc.,  li.  Co.,  42  Wis.  322. 

In  some  States  it  has  been  held  that  the  contributory  negligence  of  the 
owner  in  allowing  his  cattle  to  run  at  large  will  not  bar  his  recovery 
against  a  railroad  company  for  injuries  caused  by  a  failure  to  maintain  a 
fence.— Inman  r.  Chicago,  etc.,  R.  Co.,  60  la.  459;  Atchison,  etc.,  K. 
Co.  V.  Shaft,  33  Kan.  521;  G  Pac.  Rep.  908;  21  C.  L.  J.  249.  See 
Kansas  City,  etc.,  R.  Co.  v.  McIIenry,  24  Kan.  501 ;  Grand  Rapids,  etc.,  R. 
Co.  r.  Cameron,  45  Mich.  451 ;  Burlington,  etc.,  R.  Co.  v.  Webb,  18  Neb. 
215;  24  N.  W.  Rep.  TOG;  Louisville,  etc.,  R.  Co.  v.  Whitesell  G8  Ind 
207;  Krebs  v.  Minneapolis,  etc.,  R.  Co.,  64  la.  670;  21  N.  W.  Rop.  131 ; 
Jeffersonville,  etc.,  R.  Co.  v.  Ross,  37  Ind.  549;  Chicago  &  E.  R.  Co.  v. 
Brannegan,  5  Ind.  App.  540;  32  N.  E.  Rep.  790;  Quackenbush  v.  Wlscon- 
8lD  &  M.  R.  Co.,  71  Wis.  472;  37  N.  W.  Rep.  834;  Gulf,  C  &  S.  F.  Ry. 
Co.tJ.  Keith,   74  Tex.  287;  11  S.  W.  Rep.  1117. 

Even  in  violation  of  statute  law. —  Krebs  v.  Minneapolis,  etc.,  R.  Co., 
64  la.  070;  21  N.  W.  Rep.  131;  Atchison,  etc.,  R.  Co.  v.  Bradshaw,  S.  C. 
Kan.,  6  Pac.  Rep.  917;  Chicago,  etc.,  R.  Co.  v.  Sims,  7  Neb.  G91 ;  24  N. 
W.  Rep.  38S;  Gillam  v.  Sioux  City,  etc.,  R.  Co.,  26  Minn.  268;  Waller  v. 
Chicago,  etc.,  R.  Co.,  31  Minn.  91. 

And  even  though  they  were  straying  on  land  which  did  not  belong  to 
their  owner.— Dunkirk,  etc.,  R.  Co.  v.  Mead,  90  Pa.  St.  491;  Keiiher  v. 
Connecticut,  etc.,  R.  Co.,  107  Mass.  411;  Toledo,  etc.,  R.  Co.  v.  Gary, 
37  Ind.  172;  Railway  Co.  v.  Howard,  40  Ohio  St,  6;  McCall  v.  Chamber- 
lain, 13  Wis.  G37;  Gillam  v.  Sioux  City,  etc.,  R.  Co.,  26  Minn.  91. 

Especially  where  the  land  through  which  the  road  ran  belonged  to  the 
owner  of  the  cattle  and  they  got  upon  the  track  through  the  failure  of 
the  company  to  fenee,  and  not  through  any  fault  of  the  owner. —  Cincin- 
nati, etc.,  Ry.  Co.  v.  Ilildreth,  77  Ind.  504;  McCoy  v.  California  Pac.  R. 
Co.,  40  Cal.  532;  Illnman  v.  Chicago,  etc.,  R.  Co.,  28  la.  491;  Keech 
t.  Baltimore,  etc.,  Ry.  Co.,  17  Md.  32;  Shepard  v.  Buffalo,  etc.,  R.  Co.,  35 
N.  Y,  r,45;  Wilder  v.  Maine  Cent.  R.  Co.,  65  Me.  332;  Meadu.  Burlington, 
etc.,  R.  Co.,  52  Vl.  278;  White  v.  Concord  R.  Co.,  30  N.  II.  188. 

Although  the  railroad  owned   the  strip  upon  which  the   track    was 


120      NEGLECT    OF   DUTIES    REQUIRING   ORDINARY   CARE. 

company     [95]     are  not  liable  for  injuries  done  to  such 
cattle  upon  their  line,  as  the  statute  only  applies  to  adjoin- 

located,  and  where  the  animal  was  killed.  —  Gooding  u.  The  Atchison, 
etc.,  R.  Co.,  32  Kan.  150. 

In  New  York  itwas-held  in  a  comparatively  early  case  that  contribu- 
tory negligence  of  the  owner  in  failing  to  keep  his  cattle  from  straying 
off  his  land  was  no  defense  in  an  action  against  a  railroad  company  for 
injuries  caused  by  failure  to  fence  its  track.  —  Corwin  v.  New  York,  etc., 
R.  Co.,  13  N.  Y.  42.  A  contrary  ruling  was  made  ia  Hance  v.  Cayuga, 
etc.,  R.  Co.  (26  N.  Y.  428).  But  the  doctrine  of  Corwin  v.  New 
York,  etc.,  R.  Co.  appears  to  be  still  the  law  of  that  State. — Beach 
on  Contributory  Neg.,  2d  ed.,  p.  241.  It  is  followed  by  the  Supreme 
Courts  of  the  State  (21  C.  L.  J.  400,  citing  Sheaf  v.  Utica,  etc.,  R.  Co. 
2  N.  Y.  S.  C.  (Thorap.  v.  Cook)  388;  Fanning  v.  Long  Island  R.  Co.,  Id. 
685;  Rhodes  v.  Utica,  etc.,  R.  Co.,  5  Hun,  344.) 

In  Indiana  and  Michigan  it  appears  to  have  been  previously  held  that 
the  contributory  negligence  of  the  owners  of  animals  in  allowing  them  to 
escape  or  run  at  large  was  no  defense  in  an  action  under  the  statute 
(Jeffersonville,  etc.,  R.  Co.  v.  Ross, 37  Ind.  549;  Flint,  etc.,  R.  Co.  v.  Luii, 
28  Mich.  510)  ;  but  later  authorities  hold  the  contrary  —  LouisvWle,  etc., 
R.  Co.  V.  Whitesell,  68  Ind.  297;  Grand  Rapids,  etc.,  R.  Co.,  v.  Cameron, 
45  Mich.  451. 

In  Ohio,  continuing  to  pasture  hogs  in  a  field,  with  a  knowledge  on 
the  part  of  the  owner  of  a  defect  in  the  fence,was  held  not  to  be  contrib- 
utory negligence  in  an  action  against  the  company  (C.  C.  C.  &  I.  R.  Co.v. 
Scudder,  40  Ohio  St.  173),  and  in  Vermont,  a  railroad  company  was  held 
liable  for  killing  a  horse  which  got  upon  the  track  through  a  defective 
fence,  though  the  owner  knew  of  the  defect,  and  that  the  horse  was 
''  breechy,"  and  there  was  no  negligence  in  running  the  train. —  Congdon 
V.  Central,  etc.,  R.  Co.,  56  Vt.  390;  48  Am.  Rep.  793.  And  see  Cressyt?. 
Northern  R.  Co.,  59  N.  H.  564;  47  Am.  Rep.  227. 

But  where  one,  knowing  that  a  severe  storm  on  Saturday  had  pros- 
trated fences,  on  Sunday  turned  his  cattle  upon  uninclosed  lands  without 
inquiry  as  to  whether  the  railroad  fences  abutting  thereon  were  uninjured, 
was  held  guilty  of  such  contributory  negligence  as  would  defeat  his 
recovery  for  injuries  received  by  such  cattle.  —  Carey  v.  The  Chicago, 
etc.,  Ry.  Co.,  61  Wis.  71.  See  Eddy  u.  Kinney,  60  Vt.  554;  15  At!.. 
Rep.  198. 

So  the  owner  cannot  recover  for  the  killing  of  a  cow  when  he  had  the 
opportunity  to  drive  her  from  the  track,  but  willfully  refused  to  do  so 
and  watched  the  trainmen  try  to  stop  the  train.  —  Moody  v.  Minneapolis 
&  St.  L.  Ry.  Co.,  77  la.  29;  41  Nev.  Rep.  477. 

A  railroad  fireman  was  killed  by  coWision  of  an  engine  with  a  steer 
straying  on  the  track.  The  railway  company  owned  the  right  of  way  in 
fee  simple.    The  owner  of  the  steer  owned  the  land  on  both  sides.    The 


STATUTORY    DUTY   TO    FP:XCE  —  EVIDENCE.  121 

ing  owners  (7),  ['JO]  but  the  company  are  liable  if  they 
have  bfc'ii  ni'irliizoiit  in  omittinix  the  pcrlbrmancc  of  other 
duties  apart  from  their  statutory  duty  (;•). 


(9)  Harfell  r.  P.  Wales  Ry.  Co.,  20  L.  etc..  R.  Co.  r.  Beatty,  3G  Ind.  IS,  aro  cited 

J,  0.  P.  31S.     [The  American    cases,  do  as  sustaining  the  En^ltsh  law.) 

not.  In  general,  justify  such  a  doctrine.  (r)  Marfell  r.  .S.  Wales   Ry.  Co.,  »M;)ra 

It  li  only  when  such  adjoining;  land  of  (the    plaintiff  had  paid  toll  for  the  use 

the  company  Is  used  by  the  |)ubllc,  that  of   a  tramway  adjoining  the  railway  — 

the  company  Is  relieved  of  the  obliga-  held,  the  company  ought    to    take  rea- 

lion  to  fence  its  road.— 4  Thomp.  N'eg.  sonable    care    his  horses  were   not  In- 

W3;    Indianapolis,    etc.,    U.     K.     Co.  v.  jured). 
Oeatel,  20   Ind.   231.  and  Jctfcrsonvllle, 


railway  was  unfcnced,  and  the  owner  of  the  steer  was  in  the  hiibit  of 
tarnlog  his  cattle  loose  on  his  land.  There  was  no  statutory  duty  to 
fence.  It  was  hdd  that  there  was  no  cause  of  action  against  the  owner 
of  the  steer. — Sherman  v.  Anderson,  27  Kan.  333;  41  Am.  Rop.  414.  See 
Honsatonic,  etc.,  R.  Co.  v.  Knowles,  30  Conn.  313;  New  York  and  Erie 
R.  Co.  V.  Skinner,  19  Pa.  St.  298;  Drake  v.  Pittsburgh,  etc.,  R.  Co.,  51 
Pa.  St.  240;  Northeastern  R.  Co.  v.  Sineath,  8  Rich.  185;  Sinram  v. 
Pittsburg,  etc.,  R.  Co.,  28  Ind.  244;   Hannibal  v.  Kmney,  41  Mo.  272. 

But  in  the  case  of  Donegan  v.  Erhardt  (1 10  N.  Y.  4G8;  2:5  N.  E.  Rep. 
I05I),lt  was  held,  a  provision  requiring  railroads  to  fence  their  tracks  Is 
for  the  protection  of  persons  upon  the  trains.  In  this  case  a  brakeman 
recovered  for  injuries  received  through  a  collision  of  the  train  he  was 
on  with  a  horse  that  had  made  its  way  to  the  track  through  a  defect  in 
the  fence. 

Evidence.—  The  burden  of  establishing  negligence  Is  on  the  plaintiff, 
ni)le88  the  fact  of  injury  is  made  ;>r»na/a^'ie  evidence  of  negligence. — 
Lawrence  v.  Milwaukee,  etc.,  R.  Co.,  42  Wis.  322;  Grand  RapMs,  etc., 
R.  Co.  V.  Judson,  34  Mich.  500;  Indianapolis,  etc.,  R.  Co.  r.  Caudle,  00 
h«d.  112;  P.  C.  and  St.  L.  R.  Co.  v.  McMillan,  37  Ohio  St.  5.-.4;  Towns- 
1'7  r.  Missouri  Pac.  Ry.  Co.,  89  Mo.  31;  1  S.  W.  Rep.  15;  Robinson  y. 
81.  Ix)uis,ctc.,  Ry.  Co.;  21  Mo.  App.  141. 

In  some  States  the  fact  of  injury  is  prima  facie  evidence  of  negliaencc. 
In  such  case  the  burden  of  proof  is  on  the  railroad  company  to  show  that 
It  exercised  all  rea.sonable  diligence.— White  v.  Concord  R.  Co.,  30  N. 
H.  188;  Woolfolk  v.  Macon,  etc.,  R.  Co.,  50  Ga.  457;  Danner  v.  South 
Carolina,  etc.,  R.  Co.,  4  Rich.  320;  The  Georgia,  etc.,  R.  &  Banking 
Co.  V.  Cox,  G4  Ga.  G19;  Illinois  Cent.  R.  Co.  v.  Trowbridge,  31  111.  App. 
190;  Wood  V.  Kansas  City  R.  Co.,  43  Mo.  App.  294;  International  & 
O.N.  R.  Co.r.  Cocke,  04  Tex.  151. 

In  others  it  is  made  so  by  statute.— Little  Rock,  etc.,  R.  Co.  v. 
Henson,  39  Ark.  413;  Brentner  v.  Chicago,  etc.,  R.  Co.,  58  Iowa,  625; 
Georgia,  etc.,  R.  Co.  t;.  Fish,  65  Ga.  714;  South  &  North  Ala.  R.  Co.  v. 


122       NEGLECT    OF    DUTIKS    REQUIRING    ORDINARY    CARIj. 

[97]  Where  the  fences,  etc.,  are  properly  kept  hy  the 
company,  they  have  fulfilled  their  statutory  duty ;  but  it 

Williams,  65  Ala.  74;  Western  Maryland  R.  Co.  v.  Carter,  59  Md.  306; 
Louisville,  etc.,  R.  Co.  v.  Brown,  13  Bush  475. 

But  this  presumption  may  be  rebutted  by  proof  of  due  care. —  Durham 
V.  Wilmington,  etc.,  R.  Co.,  32  N.  C.  352;  Little  Rocli,  etc.,  R.  Co.  v. 
Payne,  33  Ark.  816;  Mobile,  etc.,  R.  Co.,  v.  Williams,  53  Ala.  595. 

The  plaintiff  must  prove  that  the  company  was  bound  to  fence  at  the 
point  where  the  animal  killed  got  upon  the  track. —  Bremmer  v.  Green 
Bay,  etc.,  R.  Co.,  61  Wis.  114;  Nance  v.  St.  Louis,  etc.,  R.  Co.,  79  Mo. 
196;  Lake  Erie,  etc.,  R.  Co.  v.  Kneadle,  94  Ind.  454;  Evansville,  etc.,  R. 
Co.  V.  Mosier,  101  Ind.  597;  Goodwin  u.  Kansas  City,  etc.,  R.  Co.,  43  Mo. 
App.  359;  Eaton  v.  Oregon  Ry.  &  Nav.  Co.,  19  Ore.  371;  24  Pac.  Rep. 
413;  Foster  v.  St.  Louis,  etc.,  R.  Co.,  90  Mo.  116;  2  S.  W.  Rep.  138. 

Where  an  animal  entered  upon  the  railroad  at  a  place  where  the  com- 
pany was  not  bound  to  fence,  and  after  wandering  along  the  road,  went 
upon  other  property,  and  afterwards  entered  upon  the  railroad  track  at  a 
point  where  the  compauy  was  required  by  law  to  fence,  and  was  killed, 
the  company  was  held  liable. —  Atchison,  etc.,  R.  Co.,  v.  Cash,  27  Kan. 
187. 

Where  cattle  are  injured  or  killed  at  a  point  where  the  company  is  not 
bound  to  fence,  the  jury,  in  the  absence  of  proof  to  the  contrary,  are 
justified  in  presuming  that  they  entered  upon  the  track  at  that  place. — 
Bennett  w.  Milwaukee,  etc.,  R.  Co.,  19  Wis.  145;  St.  Louis,  etc.,R.  Co. «. 
Casner,  72  111.  384;  McCoy  v.  California  Pac.  R.  Co.,  40  Cal.  532;  Small 
V.  Chicago,  etc.,  R.  Co.,  50  la.  338. 

Damages. —  The  measure  of  damages  is  the  reduced  value  of  the  ani- 
mal at  the  time  of  the  killing. —  Dean  v.  Chicago,  etc.,  R.  Co.,  43  Wis. 
305;  Case  v.  St.  Louis,  etc.,  75  Mo.  668;  Roberts  v.  Richmond,  etc.,  R. 
Co.,  88  N.  C.  560. 

And  if  injured  the  difEerence  between  its  value  before  and  after  the 
njury  and  the  reasonable  expense  of  its  care,  the  temporary  loss  of  its 
use  and  interest  from  the  date  of  the  action. —  Atlanta,  etc.,  R.  Co.  ». 
Hudson,  62  Ga.  679;  Jackson  v.  St.  Louis,  etc.,  R.  Co.,  74  Mo.  526; 
Toledo,  etc.,  R.  Co.  v.  Johnson,  74  111.  83 ;  Meyer  v.  Atlantic,  etc.,  R. 
Co.,  64  Mo.  542. 

Where  by  reason  of  a  railroad  company's  failure  to  construct  cattle- 
guards  and  fences  as  required  by  statute  it  becomes  responsible  for  all 
damages  by  trespassing  cattle  to  crops,  pastures,  occasioned  thereby; 
also  for  the  diminution  in  the  rental  value  of  the  land. —  Finch  v.  Chicago, 
etc.,  Ry.  Co.,  46  Minn.  250;  48  N.  W.  Rep.  915;  Missouri  Pac.  Ry.  Co.o. 
Ricketts,  45  Kan.  617;  26  Pac.  Rep.  50;  Nelson  v.  St.  Louis  &  S.  F.  Ry. 
Co.,  49  Kan.  165;  30  Pac.  Rep.  178. 

Exemplary  damages  are  not  allowed  unless  the  injury  was  willfully 
inflicted. —  Chicago,  etc.,  R.  Co.  v.  Janett,  69  Miss.  470. 


NEOLECr    OF    DLllCS    llV    OWNliUS    OF    ANIMALS.  123 

[98]  rciiiaiiis  thai  tlioy  should  exercise  onlinaiy  caro  with 
respect  to  cattle  .straying  upon  the  line,  and  if  the  com- 
pany know  or  ouirht  to  know  that  cattle  are  upon  the 
lino  (s),  and  do  not  take  care  to  have  them  removed,  the}- 
are  [1'9]  liable  in  an  action  of  negligence  in  the  samr 
niunuor  as  any  other  person  would  be  who  neglected  .so 
obvious  a  duty. 


Section  IIT. 

Neglect  of  DxUien  1^/   Owners  of  Animals. 

Persons  having  the  control  of  animals,  whether  owners 
or  not,  are  in  general  liable  for  injuries  occa.sioned  ))y  a 
want  of  ordinary  care  in  controlling  such  animals  (0).  In 
the  case  of  *'  savage  "  animals,  such  as  lions,  tigers,  etc.,  a 
man  must  keep  them  from  doing  harm  at  all  events,  and 
no  amount  of  care  will  relieve  him  from  liability  in  respect 
of  injuries  caused  by  them.      Probably  one  ground  of  this 

(»)  Shearman,  8.  472;  [Marfell  r.  S.  Hoyle  v.  Tamlyn,  6  15.  &  C.  837;  Shear- 
Walc«  Ry.  Co.,  supra.  man,  8.  185;  Wharton,  Oh.  VII.,  88.  100, 

(«)  Tenant    r.    Goldwln,  6  Mod.  314 ;       904  e^  ««7. 

Statutes  authorizing  double  damages  for  stocli  killed  i)}*  a  railroad 
have  generally  been  held  constitutional. —  Little  Rock,  etc.,  K.  Co.  r. 
Payne,  33  Ark.  81(3;  Welsh  v.  C.  B.  &  Q.  R.  Co.,  53  la.  G32;  Memphis  & 
Little  Rock,  etc.,  R.  Co.  v.  Horsfall,  3G  Ark.  Gol;  Cairo,  etc.,  R.  Co.  v. 
Warrington,  92  111.  157;  Cummlngs  v.  St.  Louis,  etc.,  R.  Co.,  70  Mo. 
570;  Phillips  V.  Missouri  Pac.  Ry.  Co.,  86  Mo.  540;  Hines  v.  Missouri 
Poc.  Ry.  Co.,  Id.  62'J;  Texas  C.  Ry.  Co.  v.  Childress,  G4  Tex.  34G. 

In  Wisconsin  a  statute  was  held  not  unconstitutional  because  it  ex- 
cluded contributory  negligence  us  a  defense  to  an  action  brought  for 
damages  caused  to  a  person  or  animal  for  want  of  a  fence. —  Quacken- 
bu«h  I'.  Wisconsin,  etc.,  R.  Co.  02  Wis.  411. 

And  in  Illinois  and  Kansas  a  statute  providing  for  attorney's  fees  In 
n<ldlilon  to  the  damages  in  such  cases  was  upheld. —  Peoria,  etc.,  R.  Co. 

Duggui^  109  111.  537;  Missouri  Pacific  Ry.  Co.  v.  Abney,  30  Kan.  41. 

Not  allowed  in  Louisiana.—  Day  v.  New  Orleans,  etc.,  Ry.  Co.,  35  La. 
An.  694. 


124      NEGLECT   OF   DUTIES   REQUIRING   ORDINARY   CARE. 

is  that  he  must  be  supposed  to  know  the  extreme  danger 
he  is  incurring  in  keeping  such  animals,  and  to  take  all 
the  risk,  as  in  the  case  of  dangerous  things,  such  as  fire 
or  water,  referred  to,  ante.  In  May  v.  Burdett  (a),  it 
is  said  that  the  gist  of  the  action  is  the  keeping  of  the 
animal  (a  monkey)  after  knowledge  of  its  mischievous  pro- 
pensities. In  an  American  case,  where  an  elephant  by  its 
mere  appearance  frightened  a  horse,  it  was  held  that  the 
owner  was  not  liable  (6). 

The  question  of  knowledge  by  the  owner  of  the  mis- 
chievous propensities  of  a  particular  animal  kept  by  him 
does  not  enter  into  a  work  on  the  law  of  negligence; 
for,  if  knowledge  is  shown,  it  is  no  defense  to  show  that 
every  care  was  taken.  When  once  knowledge  is  shown, 
the  owner  of  the  animal  is  subject  to  the  rule  with 
respect  to  savage  animals,  and  keeps  such  an  animal  at  his 
peril. 

[100]  Neither  is  it  within  the  scope  of  the  present  work 
to  deal  with  questions  of  trespass.  It  is  sufficient  to  observe 
here  that  a  man  is  liable  to  an  action  for  trespass  if  he  does 
not  prevent  his  animals  from  trespassing ;  and  it  is  no  answer 
to  such  an  action  that  he  took  the  best  possible  care  to  pre- 
vent the  trespass  (c).  Where  a  man  has  placed  his  cattle  in 
a  field,  it  is  his  duty  to  keep  them  from  trespassing  on  the 
land  of  his  neighbors ;  but  while  he  is  driving  them  upon  a 
highway,  he  is  not  responsible  (  without  proof  of  negligence) 
for  any  injury  they  may  do  upon  the  highway,  or  to 
unfenced  property  adjoining  the  highway  (cZ).  How  far 
he  is  liable  for  a  trespass  by  smaller  animals,  such 
as  dogs,    cats,    fowls,    etc.,    seems    to    be    very    doubt- 

(a)  May  v.  Bardett,  9  Q.  B.  101.  belongs  to  a  class  of  animals  which  la 
(6)  Scrlbner  v.  Kelly,  38  Barb.  14;  dangerous  to  man,  and  a  person  eshlb- 
[Bat  where  a  hog  by  its  appearance  Iting  one  is  liable  for  personal  injuries 
frightened  a  horse,  the  owner  was  held  inflicted  by  it.  —  Filburn  v.  People's  Pal- 
liable,  the  hog  being  at  large  in  viola-  ace  Car  Co.,  25  Q.  B.  Div.  258.1 
tion  of  statute.  —  Jewett  v.  Gage,  55  Me.  (c) Supra. 

.138.]  —  [Contra,  Klenberg  v.  Russell,  125  (d)  See  per  Stephen,  J.,  in  Tlllet  v. 

Md.  531;  25  N.  E.  Rep.  50(5.    An  elephant  Ward,  10  Q.  B.  D.  17. 


ANIMALS TKESPAS8.  125 

ful  (e).  It  should  seem  that  he  would  be  litiblo  for 
[101]  the  trespass  if  there  were  really  any  damage  done 
If  ),  and  if  not  liable  in  an  action  for  trespass,  at  all  events 

(e)  See  Ue«d  r.  Edwards,  17  C.  B.  N.  passing  upon  another's  land,  kills  an 

8.846;  34  L.  J.  C.  P.  31.— [McDonald   v.  animal  is  llublo for  tliu  damages  inflicted 

Jodrey,  8  Pa.  Co.  Ct.  Itcp.  142;  Rels  V  though  ho  had  no  previous  knowledge 

Slratton,  23  III.  App.  314.]  of  the  dog's  vicious  character.]  —  [Sec 

(/)  See  "Add.  on  Torts,"  pp.  110,268.  Green  v.  Doyle,  21  111.  Ai>p.  205.  The 
301, 5th  ed.,  by  L.  W.  Cave,  Q.  C.  See  as  owner  of  a  trespassing  bull  is  respon- 
tothe  necessity  ot  aiipreclable  damage,  sible  for  injuries  inllicted  by  it.— Malone 
Smith  r.  Thuckerah,  35  L.  J.  C.  P.  276;  v.  Knowlton,  15  N.  Y.  S.  Kep.  606.  Put 
L.  B.  1  C.  P.  5G4,  or  more  accurately  per-  the  liarborcr  of  a  dog  which  Is  known  to 
baps,  "  appreciable  Injury  to  a  right,"  be  In  the  habit  of  chasing  animals  pass- 
see  1  Sui.  L.  C.,8th  ed.,  p.  308;  and  see  Ing  by  on  the  road  near  by  la  not  liable 
romarks  of  Taunton,  J.,  In  Marzettl  v.  where  he  exercises  ordinary  caro  and 
Williams,  1  IJ.  &  Ad.  426;  [In  Churnotr.  the  dog  frightened  a  horse  to  plalntlflf's 
Larson,  43  Wis.  536;  28  Am.  Uep.  567,  it  Injury.—  Shawr.  Craft, 37  Fed.  Uep.  317.] 
was  hold  that  one  whose  dog,  while  tres- 

(z)  Marsel  v.  Bowman,  62  la.  57;  Moulton  v.  Inhabitants  of  Scar- 
borough, 71  Mf.  2G7;  Meredith  v.  Reed,  26  Ind.  334;  Drake  v.  Mount,  33 
N.  J.  L.  441;  Schaller  v.  Connors,  57  Wis.  321;  Manger  v.  Shipman,  30 
Neb.  352;  46  N.  W.  Rep.  527;  Barnum  v.  Terpenning,  75  Mich.  657;  42 
N.  W.  Rep.  967;  Leraoine  v.  Cook,  36  Mo.  App.  193;  Worthen  v.  Love, 
60Vt.  285;  14  Atl.  Rep.  461. 

The  question  of  control  is  for  the  jury. —  Hahnke  v.  Frederich,  140 
N.  Y.  224;  35  N.  E.  Rep.  487;  Whittemore  u.  Tliomas,  153  Mass.  347;  26 
N.  E.  Rep.  875. 

Actual  control  and  not  ownership  governs  the  liability. —  Hornbein  v. 
Blanchard,4  Colo.  App.  92 ;  35  Pac.  Rep.  187 ;  Kessler  v.  Lockwood,  62  Ilun, 
619;  16  N.  Y.  S.  Rep.  677;  Garrison  v.  Barnes,  42  111.  App.  21;  Jacobs- 
meyer  v,  Poggemoeller,  47  Mo.  App.  560;  Sproat  v.  Directors,  etc.,  145 
Pa.  St.  598;  23  Alt.  Rep.  380;  29  W.  N.  C.  461 ;  Jennings  u.  D.  G.  Burton 
I  Co.,  73  Hun,  545;  26  N.  Y.  S.  Rep.  151;  Snyder  v.  Patterson,  161  Pa,  St. 
98;  28  Atl.  Rep.  1006;  34  W.  N.  C.  288. 

(a)  Vredeuburg  v.  Behan,  33  La.  An.  627;  Glidden  v.  Moore,  14  Neb. 
84;  Popplewell  v.  Pierce,  10  Cush.  509;  Partlow  v.  Haggarty,35  Ind.  178; 
VVoolf  TJ.  Chalker,  31  Conn.  121;  Oakes  v.  Spaulding,  40  Vt.  351;  Meibus 
V.  Dodge,  38  Wis.  300;  Marble  v.  Ross,  124  Mass.  44 ;  McCaskill  v.  Elliott, 
5  Strobh.  196;  Congress,  etc.,  Spring  Co.  v.  Edgar,  99  U.  S.  645. 

The  tendency  of  some  authorities  is  toward  adopting  a  different  rule. 
InCooley  on  Torts  (2d  ed.),  p.  411,  it  is  said:  "The  keeping  of  wild 
animals  for  many  purposes,  has  come  to  be  recognized  as  proper  and 
useful;  they  are  exhibited  through  the  country  with  the  public  license 
and  approval;  governments  and  municipal  corporations  expend  large 
suras  In  obtaining  and  providing  for  them;  and  ttie  idea  of  legal  wrong 
Id  keeping  them  and  exhibiting  them  is  never  indulged.    It  seems,  there- 


126      NEGLECT    OF   DUTIES    REQUIRING   ORDINARY    CARE. 

he  would  be  liable  in  an  action  for  neojligence  if,  knowing 
that  the  animals  were  in  the  habit  of  committing  damage, 
he  took  no  care  to  prevent  them,  and  they  had  really  done 
substantial  injury. 

So  far  as  the  trespass  is  occasioned  by  negligently 
omitting  to  repair  or  keep  up  fences,  the  subject  will  be 
found  discussed  in  the  section  on  the  duties  of  owners  of 
property  {g).  Sometimes  where  there  has  been  in  fact  a 
trespass,  yet  the  thing  complained  of  is  the  neglect  of 
control  over  the  animal,  and  this  of  course  is  within  the 
scope  of  the  present  work  and  the  present  section. 

Where  the  injury  done  is  the  natural  consequence  of  the 
negligent  control,  the  owner  is  liable,  without  any  proof  of 
scienter ;  for  persons  must  be  taken  to  know  the  nature  and 
habits  of  animals  which  they  undertake  to  control  (A),  and 
ought  to  exercise  such  ordinary  care  as  is  proper  for  their 
control.     But  where  the  damage  is  such  as  it  is  not  the 

{g)  Ante,0\\.ll.  (/()  ^.  g'.  crows  or  sheep  eating  crops. 

See  Shearman,  ss.  ISS,  190. 

fore,  safe  to  say  that  the  liability  of  the  owner  or  keeper  for  any  injury 
done  by  them  to  the  person  or  property  of  others,  must  rest  on  the  doc- 
trine of  negligence.  A  very  high  degree  of  care  is  demanded  of  those 
who  have  them  in  charge;  but,  if,  notwithstanding  such  care,  they  are 
enabled  to  commit  mischief,  the  case  should  be  referred  to  the  category 
of  accidental  injuries,  for  which  a  civil  action  will  not  lie  "  referring  to 
Early.  Van  Alstine,  8  Barb.  630;  Canefox  v.  Crenshaw,  24  Mo.  199,  and 
Scribner  v.  Kelley,  .38  Barb.  14  in  the  notes. 

One  keeping  animals  mansuchti  natures  after  notice  of  their  mischievous 
propensities  is  prima  facie  liable  for  injuries  committed  by  them. —  Per- 
kins u.  Mossman,  44  N.  J.  L.  579;  Keightlinger  v.  Egan,  75  111.  141;  Will- 
iams V.  Moray,  74  Ind.  25;  39  Am.  Rep.  76;  Marsh  v.  Jones,  21  Vt.  378; 
Dearth  v.  Baker,  22  Wis.  73;  Durden  v.  Barnett,  7  Ala.  169;  McCaskill  v. 
Elliot,  5  Strobh.  196;  Campbell  v.  Brown,  19  Pa.  St.  359;  Barclay  v.  Leon- 
ard, 4  Denio,  500;  Murray  v.  Young,  12  Bush,  337;  Knowles  v.  Mulder, 
74  Mich.  202;  41  N.  W.  Rep.  896;  Finney  v.  Curtis,  78  Cal.  498;  21  Pac- 
Rep.  120;  Dockery  v.  Hutson,  125  Ind.  102;  25  N.  E.  Rep.  144;  Kinmouth 
V.  McDougal,  19  N.  Y.  S.  Rep.  771;  Sylvester  v.  Maag,  155  Pa.  St.  225;  26 
Atl.  Rep.  392. 

An  agister  is  responsible  for  injuries  inflicted  in  his  pasture  by  a  horse 
known  by  him  to  be  vicious. —  Schroeder  v.  Faires,  49  Mo.  App.  470. 


rilOOF    OK    SflKMKK.  1J7 

[102]      nature   of  llu'  aniiiial  ordiiiaril}-  U*  {(tiuiiiit,  it  lies 
iipitii  the  party  damaged  to  show  that  the  owiior  kixw  the 

Whether  the  injury  is  doue  by  the  playfulness  of  the  animal  or  In  a 
spirit  of  foroclty  dot-s  not  affect  the  liability  of  the  owner  if  he  had  notice 
of  Its  mischievous  disposition. —  Diclvson  v.  McCoy,  39  N.  Y.  4oO;  State 
V.  McDermott,  I'J  N.  J.  L.  1G3;  G  Atl.  Hep.  G53;   Hathaway  v.  Tiukhaui 
148  Mass.  85;  10  N.  K.  Ki-p.  18. 

Notice  of  IviiowlcdLje  must  be  averred  nud  i)roved. —  Con«;ress,  etc., 
.Sprinj;  Co.  v.  Kd^'ar,  It'J  U.  S.  Clo;  Wormlcy  v.  Gregg,  G5  HI.  251;  Moss 
V.  Partridge,  'J  111.  App.  490;  Twigg  v.  Hyland,  Md.  Ct.  Err.  &  App.,  '^i 
Am.  Law  Reg.  191;  Stacttcr  v.  Mc.Vrthur,  33  Mo.  App.  218;  Cameron  v. 
Bryan  (Iowa),  5G  N.  VV.  Rep.  43-t;  Laherty  v.  Hogan,  13  Daly,  633;  Mur- 
phy V.  Preston,  6  Mackcy,  514;  Mulherrin  v.  Henry,  11  Pa.  Co.  Ct.  K.  49; 
Robinson  v.  Marino,  3  Wash.  St..  434;  28  Pac.  Rep.  752;  Simpson  v. 
Griggs,  58  Hun,  393;  12  N.  Y.  S.  Rep.  1G2. 

Knowledge  of  an  agent  of  the  vicious  habits  of  a  dog  under  his  control 
is  knowledge  of  the  priucij)al. — Corliss  v.  Smith,  53  Vt.  532.  This  rule 
applies  to  corporations. — Keenan  v.  Gutta  Percha  Mfg.  Co.,  4G  Hun,  544; 
McGarry  v.  New  York  &  II.  R.  Co.,  18  N.  Y.  S.  Rep.  195. 

The  gist  of  the  action  being  the  keeping  of  such  animals  with  notice  or 
knowledge  of  tlieir  vicious  habits,  an  averment  of  negligence  is  unneces- 
sary.—Congress,  etc..  Spring  Co.  v.  Edgar,  99  U.  S.  645;  Campbells. 
Brown,  19  Pa.  St.  359;  Popplcwell  v.  Pierce,  10  Cush.  509;  Durdeu  v, 
Bamett,  7  Ala.  ir,9;  Brooks  v.  Taylor,  65  Mich.  208;  31  N.  W.  Rep.  837; 
Green  v.  Doyle,  21  111.  App.  205. 

But  where  negligence  is  averred  it  will  not  be  necessary  to  aver  knowl- 
edge of  vicious  habits. —  Dickson  v.  McCoy,  39  N.  Y.  4U0;  Goodman  r. 
Gray,  15  Pa.  St.  188;  Fallon  v.  O'Brien,  12  R.  I.  518;  Mosier  v.  Beale,  43 
Fed.  Rep.  358. 

Notice  of  mischievous  habits  on  a  single  occasion  has  been  held  suffl- 
to  charge  the  owner  (Arnold  v.  Norton,  25  Conn.  92;  Kittrcdge  v.  Elliott, 
IG  N.  H.  77;  Jacoby  v.  Ockerhausen,  59  Hun,  619;  13  N.  Y.  S.  Rep.  499, 
on  two  occasions.—  (.Maun  v.  Weiand,  81  Pa.  St.  243). 

The  biting  of  plaintiff' by  a  dog  without  the  slightest  warning  was 
held  to  constitute  sulUcient  evidence  of  the  viciousness  of  the  dog. — 
Webber  i'.  Hoag,  8  N.  Y.  S.  Rep.  76. 

Where  it  appeared  tliat  a  dog  was  ferocious  to  the  knowledge  of  his 
owner  who  sometimes  conllned  him  and  muzzled  him,  it  was  heiti  unnec- 
essary to  prove  that  he  had  ever  bitten  anybody. —  Godeau  v.  Blood,  52 
Vt.  251;  36  Am.  Rep.  761;  S.  P.  Kessler  v.  Lockwood,  62  Hun,  619;  IG 
N.  Y.  S.  Rep,  677.  See  Robinson  v.  Marino,  3  Wash.  St.  434;  28  Pac. 
Rep.  752;  Kolb  v.  Klages,  27  HI.  App.  531 ;  Brice  v.  Bauer,  108  N.  Y.  428; 
16  N.  E.  Rep.  G95. 

In  another  case  it  was  held  that  knowledge  of  the  savage  disposition 
of  a  dog  was  not  sulllcient  to  make  the  owner  liable  to  one  bitten  by  him; 


128      NEGLECT   OF   DUTIES    REQUIRING   ORDINARY   CARE. 

pur-  [103]  ticular  animal  was  capable  of  the  act  com- 
plained of,  and  when  he  has  shown  that  he  need  not  prove 
negligence  (i). 

(f)  Cook  r.  Waring,  2  H.    &    O.  332      B.  N.  S.  260;  34  L.  J.  C.  P.  31  (dogacciifl- 

(scabby  sheep) ;  Read  v.  Edwards,  17  C.       tomed  to  hunt  game). 

that  to  charge  the  owner  he  must  have  had  knowledge  of  the  dog's  pro- 
pensity to  bite  mankind.  (Keightlinger  V.  Egan,  75  111.  141.  SeeLinck 
V.  Scheffel,  32  111.  App.  17.)  In  an  action  against  the  owner  of  a  dog  for 
injury  done  by  it  to  a  quantity  of  meat,  it  was  held  not  improper  to  re- 
ceive testimony  of  the  dog's  vicious  character. —  Cheney  v.  Russell,  44 
Mich.  620. 

Contributory  Negligence. —  The  owner  of  a  vicious  animal  is  not  liable 
if  the  negligence  of  the  party  injured  contributed  to  the  injury.— Will- 
iams V.  Moray,  74  Ind.  25;  36  Am.  Rep,  76;  Keightlinger  v.  Egan,  65  111. 
235;  Putnam^.  Wigg,  59Hun,  627;  14  N.  Y.  S.  Rep.  90. 

"Where  defendant's  bull  escaped  through  a  pasture  into  the  plaintiff's 
pasture  through  a  gap  in  the  fence,  which  it  was  the  plaintiff's  duty  to 
repair,  and  injured  plaintiff's  horse,  and  there  was  no  proof  of  a  scienter, 
the  defendant  was  held  not  liable  (Scott  v.  Grove,  56  Vt.  499;  48  Am. 
Rep.  814);  and  where  the  fence  was  reasonably  secure,  but  the  bull's 
escape  was  owing  to  the  fault  of  the  owner  of  the  property  injured  or  his 
agent,  it  was  held  an  action  for  damages  could  not  be  maintained.— 
Weide  v.  Thiel,  9  111.  App.  223. 

Where  A.  permitted  his  mare  to  feed  in  the  same  field  with  B.*sball, 
and  the  bull  gored  the  mare,  it  was  held  that  A.  had  no  right  of  action 
against  B.  therefor. —  Carpenter  v.  Latta,  29  Kan.  591. 

In  another  case  (Barlow  v.  McDonald,  39  Hun,  407),  the  action  was 
for  injury  sustained  by  the  plaintiff,  a  woman,  by  being  butted  and 
knocked  down  by  the  defendant's  ram.  The  defendant,  who  lived  on  a 
farm  adjoining  the  plaintiff's,  usually  kept  the  ram  tied  up.  The  plain- 
tiff's son  borrowed  him  to  run  with  the  ewes  on  her  farm,  and  it  had  been 
running  at  large  on  her  farm  three  or  four  weeks.  The  trial  court  refused 
to  charge  that  if  she  or  her  agents  were  guilty  of  negligence  in  the  care 
of  the  ram,  which  contributed  to  the  injury,  she  could  not  recover,  and 
this  was  held  error. 

That  the  person  injured  is  a  trespasser  will  not  excuse  the  owner  of 
dangerous  animals  from  liability  for  injuries  inflicted  where  negligence  in 
keeping  thera  is  shown. —  Loomis  v.  Terry,  17  Wend.  496;  Marble  v. 
Ross,  124  Mass.  44;  Woolf  v.  Chalker,  31  Conn.  121. 

Where  one  kept  a  vicious  bull  tethered  on  his  own  land,  knowing  his 
vlciousness,  and  within  reach  of  a  road  which  the  public  had  been  accus- 
tomed to  use,  although  not  a  highway,  he  was  held  liable  foran  injury  by 
the  bull  to  a  passer  on  the  road. —  Glidden  v.  Moore,  14  Neb.  84;  45  Am. 
Bep.  98. 


ANIMALS CONTKIIHTOKY    N  K(i  I.KS  I  N  (  K  .  129 

It  is  said  that  a  porson  (lii\'in<^  cattle  tlii()U<^li  a  strct't  1h 
l)Oun<I  to  take  the  utmost  caro  to  avoid  doing  any  injury  to 
the  public  (k).  It  seems  that  surrounding  circumstances 
bt'infif  frau<;ht  with  more  danujor,  more  care  must  ho  usctl. 
There  is  a  danger  both  from  the  nature  of  the  animals  and 
from  the  crowded  street  (/). 

[104]     But  these  cases  are  not  those  of  "  savage  "   ani- 

(k)  FIrkcn  v.  JoncB,  28  Oal.  C18.    See  (0  Ah  to  Uila  see  post,  (Jli.  III.,  b.  3, 

TIlMt  I'.    Ward,  10  Q.  H.  I).  17;  [Hcwes 
r.  McNAmara.  106  Mass.  281.] 

And  where  the  Injury  occurred  throui^h  the  negli;j;ence  of  a  co-servant 
iaomltUn<;  to  chain  up  a  dotj,  whereby  defendant's  -watchman  was  bitten, 
th«  defendant  was  held  liable,  as  this  was  one  of  the  risks  of  the  employ- 
ment whlc!i  he  did  not  assume. —  Muller  u.  McKasson,  73  N.  Y.  195;  29 
Am.  Rep.  123.  See  Farley  v.  Picard,  78  Hun,  5G0;  29  N.  Y.  S.Rep.  802, 
Bat  the  employer  Is  not  liable  where  a  .«ervant  at  the  suirixestion  of  a  co- 
Herrant  attempts  to  feed  a  chained  and  vicious  dog. —  Werner  v.  Winter- 
bottom,  1  N.  Y.  S.  Rep.  417. 

If  the  act  of  a  dog  is  the  sole  and  proximate  cause  of  the  shying  of  a 

-e,  and  such  shying  is  not  the  result  of  any  vicious  habit  of  the  horse, 
fact  that  it  contributed  to  plaintiff's  injury  does  not  prevent  him  from 
maintaining  an  action  against  the  owner  of  the  dog,  under  Mass.  Gen. 
tJU  ch.  8tl.— Denni-son  v.  Lincoln,  131  Mass.  23G, 

Contributory  negligence  on  the  part  of  a  child  has  been  held  no 
defense.— Meibus  v.  Dodge,  38  Wis.  300;  Munn  v.  Reed,  4  Allen,  431. 
See  Burhara  r.  Strother,  GG  Mich.  619;  33  N.  W.  Rep.  410. 

Where  plaintifif  put  his  hand  on  the  neck  of  his  own  dog  to  pull  him 
along  and  prevent  a  tight  with  defendant's  dog  near  by,  that  fact  will  not 

vent  his  recovery  for  an  injury  inflicted   by  defendant's  dog  which 
ifdiatcly  sprang  upon  the  dog  plaintiff  was  holding. —  Mattesoa  v. 
Strong,  159Ma-s.  497;   34  N.  E.  Rep.  1077. 

Where  one  having  knowledge  of  the  vicious  propensities  of  a  dog, 
offered  it  a  piece  of  candy  while  it  was  lying  in  front  of  the  owner's  store 
*Dd  was  bitten,  this  was  held  not  such  contributory  negligence  as  would 
[bar  a  recovery  (Lynch  v.  McNally,  73  N,  Y.  347) ;  but  where  the  plaintiff 
irritates  a  dog  and  is  bitten  in  consequence  ho  cannot  recover. —  Keigbt- 
Inger  o.  Egan,  65  111.  235;  Quimby  v.  Woodbury,  G3  N.  IL  370;  Llnck  v. 
Schcffel,  32  111.  App.  17. 

PlaJntlfrs  inadvertently  stepping  on  a  dog  of  savage  disposition  (Fake 
r.  Addicks,  45  Minn.  37;  47  N.  W.  Rep.  450),  or  walking  rapidly  along 
the  highway  and  talking  loudly,  just  before  being  bitten  by  a  dog,  will 
|not  prevent  his  recovering  damages  for  the  Injury. —  Dockerty  v.  Ilutsou, 
126  Ind.  102;  25  N.  E.  Ktp.  144. 

0 


130      NEGLliCT    OF    DUTIES    REQUIRIXa    ORDINARY    CARE. 

rnals  but  only  of  quasi-savacre  animals,  which  we  shall 
speak  of  presently. 

The  mere  keeping  of  infectious  animals,  even  where  the 
animals  belonging  to  another  person  are  thereby  endan- 
gered, is  not,  it  seems,  a  negligent  act  of  itself  (wz),  but 
it  may  be  so  (n). 

The  question  how  far  the  owner  of  an  animal  not  known 
to  be  vicious,  and  which  cannot  naturally  be  presumed  to  be 
so,  but  which  escapes  from  control  and  injures  another,  is 
liable  for  such  injury,  is  not  by  any  means  free  from  diffi- 
culty. The  difficulties,  however,  mainly  arise  upon  the 
question  of  contributory  negligence,  and  this  subject  will 
be  more  conveniently  dealt  with  in  a  separate  chapter ;  see 
Chapter  V.  If  the  animal  is  properly  under  his  control, 
and  he  is  exercising  ordinary  care,  but  nevertheless,  the 
animal  does  an  injury,  the  owner  is  not  liable  (o)  ;  but  if 
he  negligently  omits  to  exercise  ordinary  care  to  control  it, 
he  is  liable  for  such  injury  as  is  the  proximate  result  of 
such  negligence  (p). 

(m)  Shearman,  s.  193.  See  Contagious  ther,  L.  R.  10  Ex.  261  (horses  running 

Diseases  (Animals)  Act,  41  &  42  Vict.  c.  awaj',  frightened  by  bark  of  dog) ;  [Ben- 

74.  nettr.  Ford,  47Ind.  264.] 

(n)  See  Cook  v.  Waring,  supra.  (p)  See  Oh.  I. ;  ^nd  see  post,  Ch.  V., 

(o)  Shearman,  194.    Holmes   v.    Ma-  Contributory  Negligence. 


(m)  and  (?i)  Fisher  v.  Clark,  41  Barb.  329;  Mills  v.  New  York,  etc.,  E. 
Co.,  2  Robt.  326;  41  N.  Y.  G19;  Walker  v.  Herron,  22  Tex.  55;  Missouri 
Pac.  Ry.  Co.  v.  Finley,  38  Kan.  550;  16  Pac.  Rep.  951 ;  Kemmish  v.  Ball, 
30  Fed.  Rep.  759. 

In  several  of  the  States  this  subject  is  regulated  by  statute.  See 
Furley  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (^lowa) ;  57  N.  W.  Rep.  719: 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Goolsby,  58  Ark.  401 ;  24  S.  W.  Rep.  1071. 

In  Gibbs  v.  Coykendall,  39  Hun,  141,  the  plaintiff  hired  the  defendant 
to  pasture  cattle  on  his  farm,  and  they  there  fell  sick  and  died  of  Texan 
fever,  which  they  contracted  from  the  dejections  of  Texan  cattle  pre- 
viously pastured  there.  The  plaintiff  did  not  know  of  the  previous  pas- 
turing, and  the  defendant  did  not  know  of  this  danger  of  contracting  the 
disease.    It  was  held  that  the  defendant  was  not  liable. 

When  animals  infected  with  disease,  trespass  in  the  lands  of  another 
and  infect  the  animals  of  the  latter,  the  owner  of  the  diseased  animals 


ANIMALS —  CONTKlHlTOin     NKii  I.KJKXCK.  1  .'5 1 

[1051  As  to  cuttle  .stra^-ini;  iiiion  railro.nls.  -.«•  ("|i.  11., 
supra i  pp.  108-113. 

Ill  the  case  of  dogs  the  law  ap[)ear.s  to  have  dt'ult  somo- 
wliat  teiulcrly  with  their  owners,  and  to  have  hchl  that  tliey 
are  not  lial>le  unless  knowledge  of  the  vice  of  the  parlicu- 
lar  dog  is  brought  home  to  thiin.  And,  indeed,  in  several 
lases  at  nisi  prius  it  seems  to  have  been  allowed  that  a  man 
may  keep  a  dog  v.hich  he  knows  to  be  savage  for  the  pur- 
pose of  defending  his  house,  and  is  not  liable  for  I'uy 
injury  such  dog  may  do  provided  he  does  not  kee[)  him 
■fgligcntly  (q). 

'/)  Urook  r.    Copclanfl,  1  Ksq.    803;  Sarch  v.  Blackburn,  4  C.  »V  1'.  :{0<);  Curtis 
Mill*.  5C.  AP.  489. 

will  be  liable.  —  Barnum  v.  Vandusen,  IG  Conn.  200;  Uerrick  t7.  Gray,  65 
111.  101;  83  111.  85. 

That  plaintiff  did  not  apply  the  proper  remedy  in  curincj  his  sheep, 
was  held  no  defense.  —  Uerrick  r.  Gary,  83  III.  85.  See  Moss  v.  I'ar- 
drldge,  i)  HI.  App.  490.  But  generally  contributory  negligence  is  a  com- 
petent defense.  —  Patee  v.  Adams,  37  Kan.  133;   14  I'ac.  Kep.  505. 

{q)  lu  Loorals  V.  Terry  (17  Wend.  4'JG;  I  Thomp.  Neg,  192),  it  was 
held  "  tliat  a  man  may  keep  a  dog  for  the  necessary  defense  of  his  house, 
hia  garden  or  his  fields  and  may  cautiously  use  him  for  that  purpose  in 
the  night  time;  but  if  he  permit  a  mischievous  dog  to  be  at  large  on  his 
premises  and  a  person  is  bitten  by  him  in  the  day  time,  the  owner  is  lia- 
ble In  damages  though  tlie  person  injured  be  at  the  time  trespassing  on 
the  grounds  of  tlie  owner  by  liuuting  in  liis  woods  without  license." 

lu  Melsheimer  v.  Sullivan  (1  Colo.  App.  22;  27  Pac.  Itup.  17),  the 
owner  of  a  ferocious  dog  which  was  kept  chained  in  a  private  alley  of 
ea«y  and  frequent  access  was  held  responsible  for  the  dog's  biting  a 
pollct.'man  who  was  pursuing  a  suspicious  character  through  tlie  alley. 
See  Goude  r.  Martin,  57  Md.  GOfJ;  40  Am.  Kep.  448,  and  Laveroue  v. 
Manglantl,  41  Cal.  138;  Webb's  Pollock  on  Torts,  p.  C13. 

In  Montgomery  v.  Koester,  35  La.  An.  1091;  48  Am.  Rep.  253,  the 
owner  of  a  watch  dog  kept  chained  by  day  and  loosed  by  niglit  was  held 
liable  without  further  proof  of  scienter  to  one  who  was  bitten  by  the  dog 
while  passing  on  the  highway  at  night.  See  State  u.  Hemhoff  (N.  J.), 
26  All.  Rep.  8t;o. 

(»)  Gries  r.  Zeck,  24  Ohio  St.  329;  Orme  v.  Roberts,  51  N.  II.  110; 
Pressy  v.  Wirth,  3  Allen,  191 ;  Woolf  v.  Chalker,  31  Conn.  121;  Swift  r. 
Applebone,  23  Mich.  252. 

The  statute  in  this  State  does  not  apply  to  Injuries  by  mad  dogs.  — 
Elliott  V.  U,T7.,  29  Mich.  202. 


132      NEGLECT   OF   DUTIES   REQUIRING   ORDINARY    CARE. 

The  law  on  this  point  being  found  to  be  very  unsatisfac- 
tory, especially  in  regard  to  the  protection  of  sheep  and 
cattle  (r),  the  28  cS;  29  Vict.  c.  60  (s)  was  passed  render- 
ino-  proof  of  the  scienter  unnecessary  where  dogs  have 
injured  such  animals,  and  the  owner  of  a  dog  doing  such 
injury  is  now  made  liable  by  the  statute,  without  any  proof 
of  necrlioeuce. 

It  is  submitted  that  in  all  cases  the  owner  of  dogs,  and  of 
other  animals  not  ordinarily  savage,  should  be  liable  for 
negligence  and  for  that  only,  such  negligence  depending 
upon  the  whole  circumstances  of  the  case,  and  amongst 
others  of  knowledge  of  vice  by  the  owner.  As  the  law  is 
at  present,  persons  escape  liability  from  the  difficulty  of 
'proof  oi  scienter ^  and,  on  the  other  hand,  it  is  hard  that  the 
[106]  greatest  amount  of  care  will  not  excuse  after 
knowledge  is  proved,  or  in  cases  under  the  statute  without 
knowledge  being  proved.  The  Scotch  Act,  '^^  &,  27  Yict. 
c.  100,  did  not  contain  the  words  "  or  that  the  injury  was 
attributable  to  neglect  on  the  part  of  such  owner;  "  so  that 


(r)  This  has  been  held  to  apply  to  Act   has  been  held    to   apply  to  pigs, 

horses,  Wright ».  Pearson,  L.  R.  4  Q.  B.  Childs  v.  Hearn,  43  L.  J.  Ex.  100. 

582 ;  38  L.  J.  Q.  B.  312,  and  was  ruled  by  (s)  26  &  27  Vict.  c.  100  is  a  similar  Act 

Mellor,  J.,  to  apply  to  horses  in  harness.  for  Scotland. 
Ed.    And  the  word  "  cattle,"  in  another 


Shaller  v.  Connors,  57  Wis.  321.  Under  the  Wisconsin  statute  the 
owner  or  keeper  of  a  dog  is  liable  for  injuries  to  the  clothes  as  well  as 
for  injuries  to  the  person  of  one  bitten. 

In  some  States  the  statutes  apply  to  injuries  by  dogs  to  sheep. — Keer 
•0.  O'Connor,  63  Pa.  St.  341. 

To  killing  or  wounding  sheep.  —  Fish  v.  Skut,  21  Barb.  333;  Osincup 
W.Nichols,  49  Barb.  145;  Hall  v.  Cootmire,  2  Vt.  9,  including  chasing  and 
worrying  sheep.  — Job.  w.  Ilanlan,  13  Ohio  St.  485.  See  Jacobsmeyer 
V.  Poggeraoeller,  47  Mo.  App.  6G0. 

In  some  States  double  damages  are  given  for  injuries  by  dogs  to 
stock.— Orme  v.  Roberts,  51  N.  H.  110;  Swif t  u.  Applebone,  23  Mich. 
252;  Smith  v.  Causey,  22  Ala.  568;  Le  Forest  v.  Tolman,  117  Mass.  109; 
Prescolt  V.  Knowles,  62  Me.  277 ;  Hussey  v.  King,  83  Me.  568 ;  22  Atl.  Rep. 
476;  Trampen  v.  Verhage,  54  Mich.  304;  Raymonds.  Hodgson,  161  Mass. 
184;  30  N.  E.  Rep.  791. 


lIKillWAVS.  13.'i 

ill  SfotlaiKi  nei^ligenco  must  btill  he  proved  th()U<:li  the 
scienter  need  not. 

With  regard,  howcvor,  to  some  animals,  which,  although 
not  **  savage"  nor  yet  "  domestic,"  are  apt  frequently  at 
certain  times  and  places  to  bo  dangerous,  wo  think  that  they 
must  bo  classed  in  the  samo  category  with  dangerous  goods, 
and  that  something  more  than  ordinary  care  must  bo  exer- 
cised with  respect  to  thom  (/). 

♦*  Where  two  or  more  animals  belonging  to  different  per- 
sons unite  in  committing  an  injury,  the  owners  cannot  at 
common  law  be  made  jointly  liable  for  the  acts  of  all  the 
[107]  animals  thus  acting  together,  but  each  owner  is 
separately  liable  for  so  much  only  of  the  damage  as  was 
done  by  his  animal  "  (u). 


Section  IV. 

Veglect  of  Duties  by   Owners  or  Controllers  of  Highways. 

The  reader  of  the  present  treatise  must  be  referred  to 
works  specially  written  to  illustrate  the  general  law  of 
highways  for  definitions  of  ♦'  highway,"  and  of'*  nuisances  " 

(I)  Sc«  pott,  Ch.  III.,  8.  3.  adopt  any  reasonable  metbod  of  assess- 

(u)  Shearman,  b.  198.    Thejary  may       log  the  damagoB. 

(u)  Denny  v.  Correll,  9  Ind.  72;  Adams  v.  Hall,  2  Vt.  9;  "Wilbur  v. 
Hubbard,  35  Barb.  303;  Powers  v.  Kindt,  13  Kan.  74;  Russell  v.  Tomlin- 
8on,  2  Conn.  20(J;  Buddington  w.  Sliuarer,  20  Pick.  477. 

The  rule  Is  otherwise  in  Ohio.—  Boyd  v.  Watt,  27  Ohio  St.  259. 

So  In  Ma.s8achusetts  under  the  Statute. —  Calvin  v.  Parker,  154  Mass. 
■  1'^;  28  N.  E,  Rep.  244. 

In  Kerrr.  O'Connor,  63  Pa.  St.  341,  it  is  held  under  the  statute  that  an 
action  m.iy  be  brought  against  ail  tlie  owners  of  several  dogs  who  at  one 
time  kill  and  wound  sheep,  and  each  owner  is  liable  for  the  whole  dara- 
ajje  done.  The  same  liability  extends  to  the  owner  of  a  dog  under  the 
Vermont  statute.— Remele  r.  Donahue,  54  Vt.  555. 


134       NEGLECT    OF    DUTIES    KEQUIRING    ORDINAUY    CARE. 

and  "  non-repair,"  and  for  the  various  modes  of  enforcing 
the  right  of  the  user  by  the  public. 

It  is  not  proposed  in  the  present  treatise  to  illustrate  the 
various  liabilities  which  the  statute  law  has  cast  upon  differ- 
ent towns  or  corporations  with  respect  to  their  streets  and 
highways  (x).  Each  town  has  its  own  statutes  and  by- 
laws, and,  as  in  the  case  of  particular  contracts,  the  question 
is  generally  one  of  construction.  Nor  is  it  intended  to  dis- 
cuss the  powers  and  liabilities  of  public  authorities  with 
respect  to  the  streets  or  highways  placed  under  their  control 
by  the  Public  Health  Act  of  1875,  or  by  the  Highway  Acts. 
Such  a  discussion  would  lead  us  too  far  a-field ;  and  the 
reader  who  desires  more  particular  information  upon  these 
points  must  seek  for  it  in  books  more  especially  devoted  to 
[108]  those  topics.  All  that  can  be  done  in  the  present 
treatise  is  to  point  out  the  general  principles  of  the  law 
applicable  to  the  subject. 

With  respect  to  the  law  of  nuisance,  as  has  been  already 
stated  (y),  it  must  be  remembered  that  a  private  action 
arises  only  where  the  act  which  is  a  nuisance  to  the  public 
has  caused  a  special  and  particular  damage  to  the  party 
himself  (z)  ;  and  further,  that  in  order  to  found  an  action 
for  negligence  there  must,  as  we  have  seen  (a),  be  a  duty 
which  has  been  neglected  (b)  and  an  equality  of  rights  (c). 

No  action  could  be  maintained  at  common  law  for  an 
injury    arising   from    the    non-repair    of  a    highway   (d). 

(r)  The  general  rule  as  regards  cor-  (6)  Collins  r.  Selden,  L.  R.  3  C.P.  495. 

porallons  will  be  found  post.  Oh.  III.,  s.  (c)  See  nnie,  p.  5. 

6,  title  "  Corporations."  (d)  The  reason  for  this  has  been  va- 

(l/)  See  Ch.Il.,  8.  2,  Real  Property.  riously  stated.    Gibbs  v.  Mersey  Docks, 

(c)  Duncan  v.  Thwaites,   3    B.  &  C.  per  Blackburn,  J.;  L.  R.  I.  H.  L.  p.  Ill; 

056;  Ivcson  v.  Moore,  1  Ld.  Raym.  4SG;  35  L.  J.  Ex.  2-25;  Young  r.  Davis,  7  H.  & 

Wlnterbottom    v.   Lord   Derby,  L.  R.  2  N.  700;  2  H.  &  C.  197;   Parsons   v.   St. 

Kx.  310. —  [Storm  v.  Barger,  43  111.  App.  Matthew,  Bethnal  Green,  L.  R.  3  C.  P, 

173;  Hart  v.  Backncr,  54  Fed.  Rep.  925-  56;  37  L.  J.  C.  P.  62;  Gibson  v.  Preston 

Bee  Webb's  Pollock  onTortB,p.481e<sc<7.]  (Mayor  of),  L.  R.  5Q.  B.  222;  39  L.  J.  Q. 

(a)  Ante,  p.  1.  B.  131. 

(d)  In  the  United  States  there  is  no  common  law  obligation  resting 
upon  <7uasi-corporations,  such  as  counties,  townships,  and  New  England 


OBLIGATION    TO    i:i:rAIU    UI'MIWW.  135 

riOl']  But  a  (Inly  may  bo  cast  upon  a  corporal  ion  to 
repair  the   highway,  and,  if  that  is  clearly  »J(Hit',  they  will 

towDH  to  repair  highways,  streets  orbrld;?e8  within  their  limits,  and  they 
arc  not  obliged  to  do  so,  unless  by  force  of  statute.  Kven  wlien  tlie  leg- 
blaturo  enjoius  upon  corporations  of  this  character  the  duty  to  make 
and  repair  roads,  streets  and  bridges  and  confers  the  power  to  levy  taxes 
therefor,  the  general  tenor  of  the  decisions  Is  to  treat  this  as  a  puiillc, 
and  not  as  a  corporate  duty,  and  to  regard  such  corporations  in  this 
rwspect  as  public  or  State  agencies,  and  not  liable  to  be  sued  civilly  for 
damages  caused  by  the  neglect  to  perform  this  duty,  unless  the  action  be 
given  expressly  by  statute. —  2  Dillon  on  Municipal  Corporations,  3d  ed., 
§91)7.  See  Hill  v.  Boston,  11.'2  Mass.  344,  a  leading  case;  Beach  Pub. 
Corp.,  ?§  750,  141)4. 

In  that  case  (liiU  v.  Boston)  it  was  held  tliat  a  •'  child  attending  a 
public  school  in  a  school-house  provided  by  a  city  under  the  duty  im- 
posed upon  it  by  general  laws,  cannot  maintain  an  action  against  the  city 
for  an  injury  suffered  by  reason  of  the  unsafe  coudition  of  a  staircase  in 
the  school-house  over  which  he  is  passing."  Gray,  C.  J.,  in  delivering 
the  opinion,  cited,  among  other  cases,  Kiddle  v.  Proprietors  of  LocI<s 
and  Canals,  7  Mass.  161),  187,  and  Mower  v.  Leicester,  9  Mass.  247,  250, 
and  said:  •'Those  cases  have  ever  since  been  considered  as  having 
established  in  this  commonwealth  the  general  doctrine  that  a  private 
action  cannot  be  maintained  against  a  town  or  otlier  ^wasi-corporation 
for  a  neglect  of  corporate  duty,  unless  such  action  is  given  by  statute. — 
White  V.  Phlllipston,  10  Mete.  108,  110;  Sawyer  v.  Northdeld,  7  Gush. 
490,41)4;  Blgelow  v.  Randolph,  14  Gray,  541,  543.  And  they  have  been 
approved  and  followed  throughout  New  England. —  Adams  v.  Wi<scasset 
Bank,  1  Greenl.  3G1,  3G4;  Reed  u.  Belfast,  20  Me.  24C,  248,  Farnura  t?. 
Concord,  2  N.  11.  31)2;  Eastman  v.  Meredith,  3G  N.  II.  284,  21)7-300;  Uyde 
r.  Jamaica,  27  Vt.  443,  457 ;  State  v.  Burlington,  30  Vt.  521,  524  ;  Chidsey 
0.  Canton,  17  Conn.  475,  478;  Taylor  v.  Peckham,  8  R.  I.  349,  352.  See, 
further,  to  the  same  effect  cited  Freeholders  of  Sussex  v.  Strader,  3 
Harrison,  108;  Cooley  v.  Freeholders  of  Essex,  3  Dutcher,  415;  Liver- 
more  V.  Freeholders  of  Camden,  5  Dutcher,  245,  and  2  Vroom,  507; 
Commissioners  of  Highways  v.  Martin,  4  Mich.  557;  White  v.  Bond,  58 
111.  297;  Waltham  v.  Kemper,  65  111.  340;  Hamilton  Co.  Com.  v.  Mighels, 
7  Ohio  St.  109.  In  this  last  case  it  was  held  that  the  "  board  of  commis- 
sioners of  a  county  are  not  liable  in  their  5?/«si-corporate  capacity,  either 
by  statute  or  at  common  law,  to  an  action  for  damages  for  injury 
resulting  to  a  private  party  by  their  negligence  in  the  discharge  of  their 
official  functions. 

While  In  several  of  the  States  acts  have  been  passed  imposing  duties 
upon  county  ofllcials  to  keep  highways  In  good  condition,  for  the  neglect 
of  which  criminal  and  sometimes  civil  actions  He,  It  remains  a  general 
rule,  that  will  ri-  t!ie  common  law  has  not  been  abrogated  counties  are  not 


136      NEGLECT   OF   DUTIES   REQUIRING   ORDINARY    CARE. 

be  answerable  in  an  action  for  negligence  (e)  ;  but  the 
whole  question  in  such  cases  depends  upon  whether  the 
particular  section  of  the  Act  relied  upon  by  the  party  injured 
does  or  does  not  impose  a  duty  to  repair,  and  this  is  a 
matter  of  construction. 

This  duty,  if  imposed  upon  a  corporation,  will  probably 
extend  itself  not  merely  to  the  absolute  repair  of  the  road, 
but  to  the  protecting  of  persons  from  dangers,  which  are 
as  it  were  attached  to  the  ordinary  user  of  the  highway, 
and  into  which  people  would  naturally  run  if  they  were  not 
protected  from  such  dangers  (/).  It  must  be  borne  in  mind 
that  corporations  executing  statutory  powers  are  bound  to 
use  more  than  ordinary  care  (^). 

(e)  Hartnell  v,  Ryde  Commissioners,  numerous  upon  this  subject,  and  It 
4  B.  &  S.  361 ;  33  L.  J.  Q.  B.  39.  See  Gib  -  should  be  remarked  that  where  the  dan- 
son  V.  Preston,  supra.  gers  are  greater  there  is  the  greater  duty 

(/)  Blackmore  r.  Vestry  of  Mile  End  to  take  care. 
Old  Town,  9  Q.  B.  D.  451 ;  Shearman,  s.  (g)  Ch.  III.,  s.  6,  Corporations. 

389,  et  seq.    The  American  cases  are  very 

liable  for  injuries  resulting  from  defects  in  their  highways.  —  Templeton 
V.  Linn  County,  22  Ore.  313;  29  Pac.  Rep.  795 ;  Clark  v.  Lincoln  County,  1 
Wash.  518;  20  Pac.  Rep.  276;  Abbett  v.  Johnson  County,  114  Ind.  61; 
16  N.  E.  Rep.  127;  Cones  v.  Com'rs  Benton  County,  137  Ind-  404;  37  N. 
E.  Rep.  272;  Bailey  u.  Lawrence  County  (S.  D.),  59  N.  W.  Rep.  219; 
Board  Com'rs  El  Paso  County  u.  Bisb,  18  Colo.  474;  33  Pac.  Rep.  184. 
But  see  Rohrbough  v.  Barber  Co.,  39  W.  Va.  472;  20  S.  W.  Rep.  666;  40 
C.  L.  J. 125. 

"  It  is  now  settled  in  most  all  the  States  independently  of  statutes  ex- 
pressly so  providing  that  cities  and  towns  which  voluntarily  accept  their 
charters  from  the  State  clothing  them  with  special  privileges  to  be  exer- 
cised for  the  benefit  of  their  citizens  and  committing  to  them  exclusive 
control  over  streets,  alleys  and  highways  within  their  limits,  are  liable 
in  an  action  for  damages  to  any  person  specially  injured  by  their  failure 
to  keep  such  streets,  alleys  and  highways  in  suitable  repair." — 2  Thomp- 
Neg.,  p.  753,  §.  12.  See  Albrittin  v.  Mayor,  etc.,  Huntsville,  60  Ala.  486, 
31  Am.  Rep.  46;  O'Neil  v.  City  of  New  Orleans,  30  La.  An.  220;  31  Am. 
Rep.  221;  Noble  v.  City  of  Richmond,  31  Gratt.  271;  31  Am.  Rep.  726. 
Beisergel  v.  Town  of  Seymour,  58  Conn.  43;  19  Atl.  Rep.  372;  Ember  v. 
Town  of  Wallkell,  132  N.  Y.  222;  30  N.  E.  Rep.  404;  Schaeffer  v.  Tp.  of 
Jackson,  150 Pa.  St.  145;  24  Atl.  Rep.  G29;  Rurarill  v.  Town  of  Delafield, 
82  Wis.  184;  52  N.  W.  Rep.  261;  Judd  v.  Town  of  Claremont  (N.  H.), 


OBLIGATION    TO    KKTAIK    IIKMIUAV.  1  .'}7 

[110]  Where  there  is  an  unauthorized  iutfrrcrence  or 
obstruction  to  a  highway,  an  action  wouKl  lie  for  special 
injury  thereby  (h);  but  this  wonhl  not  be  an  action  for 
nech^ence.  So,  also,  where  there  is  an  unreasonable  user 
of  a  highway,  that  is  an  interference  or  obstruction,  and 
the  rights  uro  not  equal,  for  the  party  has  no  right  what- 
ever to  such  user;  but  if  the  user  is  in  itself,  if  care  is 
taken,  reasonable,  the  rights  of  the  parties  are  equal,  i.  e., 
each  has  ft  right  to  the   reasonable  user   of  the  highway, 

(*)  Harris  r.  Mobbs,  L.  U.  3  Kx.  D.  (horse  phled  at  roller).— [LcwIh  r. 
m  (horse  shied  at  van  by  side  of  high-  Riverside  Water  Co.,  76  Cal.  249;  in  I'ac. 
way);  Wllkina  v.  Day,  VI  Q.  K.  D.    lio      Kep.  314.] 

23  Atl.  Rep.  427;  Hopkins  v.  Town  of  Rush  River,  70  Wis.  10;  34  N.  W. 
Rep.  909;  36  N.  W.  Rep.  939;  Tp.  of  Burrell  v.  Uacaplier,  117  Pa.  St.  353; 
11  Atl.  Rep.  C19. 

In  some  States  this  rule  Is  denied. — McCutcheon  v.  Homer,  43  Mich. 
483;  38  Am.  Rep,  212;  Nava.sota  v.  Pearce,4G  Tex.  625;  2G  Am.  Rep.  271); 
Youns  V.  Charleston,  20  S.  C.  110;  47  Am.  Rep.  827;  Tranter  w.  City  of 
Sacramento,  CI  Cal.  271;  Tray  v.  Mayor,  etc.,  32  N.  J.  L.  394;  Lang- 
worthy  ».  Tp.  of  Green,  88  Mich.  207;  60  N.  W.  Rep.  130;  Sargent  v 
Town  of  Gilford  (N.  U.),  27  Atl.  Rep.  300.  But  see  Wakeham  r.  Tp.  of 
8t.  Clair,  91  Mich.  15;  51  N.  W.  Rep.  090;  Chope  ».  City  of  Eureka,  78 
Cal.  6«8;  21  Pac.  Rep.  304. 

A  town  is  not  civilly  liable  for  an  injury  caused  by  a  defect  iu  a  high- 
way in  the  absence  of  a  statute  fixing  such  liability. —  Altnow  v.  Sibley, 
80  Minn.  180;  44  Am.  Rep.  191. 

There  is  no  law  In  Texas  rendering  any  township  liable  in  a  civil  ac- 
tion for  damages  for  neglecting  to  keep  a  highway  in  a  safe  condition. — 
Elkenberg  v.  Bazaar,  22  Kan.  556. 

Lack  of  funds  with  which  to  make  repairs  will  not  excuse  the  town 
from  liability  where  a  person  is  injured  by  reason  of  a  defect  in  the 
street. —  Rhines  r.  Town  of  Royalton,  01  Hun,  024;  15  N.  Y.  S.  Rep.  944. 
See  Carney  v.  Village  of  Marseilles,  130  111.  401 ;  20  N.  E.  Rep.  491 ;  Clap- 
per t.  Town  of  Waterford,  62  Hun,  170;  16  N.  Y.  S.  Rep.  640;  Wiltse  w. 
Townof  Tiiden,  77  Wis.  152;40  N.  W.  Rep.  234. 

In  many  of  the  States  the  manner  of  presenting  and  allowing  claims 
for  Injuries  caused  by  defects  in  the  streets  and  highways  has  been  pre- 
scribed by  statute.  See  Goldsworthy  v.  Town  of  Linden,  75  Wis.  24;  43 
N.  W.  Ri-p.O^O;  Kel.-ea  v.  Manchester,  64  N.  11.570;  15  All.  Rep.  200; 
Pendergast  t).  Town  of  Clinton,  147  Mass.  402;  18  N.  E.  Rep.  75;  Green- 
leaf  V.  Inhabitants  of  Norridgwock,  82  Mo.  62;  19  Atl.  Rep.  91;  Beislegel 
«.  Town  of  Seymour,  58  Conn.  43;   19  Atl,  Rep.  372. 


138      NEGLECT    OF   DUTIES    REQUIRING   ORDINARY    CARE. 

and  their  only  liability  arises  when  they  omit  to  take 
care.  Thus,  in  cases  of  unloading  wagons  by  the  side  of 
the  highway,  the  right  to  do  so  is  subordinate  to  the  right 
of  passage  along  the  highway  by  the  public,  and  if  the  right 
of  passage  is  substantially  interfered  with  it  is  a  nuisance, 
and  the  question  of  negligence  does  not  arise  («). 

(i)  Rex  r.  Russell,  6  East,  427;  Rex  v.  Cross,  3  Camp.  226;  Elliott  on  Roiids 
and  streets,  p.  477. 

(t)  Obstructions  necessitated  by  erecting  buildings  may  not  be  a  nui- 
sance.— State  V.  Omaha,  14  Neb.  265;  45  Am.  Rep.  108;  Clark  v.  Fry,  8 
Ohio  St.  358;  Wood  v.  Mears,  12  Ind.  615. 

Or  an  exhibition  of  wild  animals  in  the  streets  under  license. —  Little 
V.  City  of  Madison,  49  "Wis.  605;  35  Am.  Rep.  793;  contra,  42  Wis.  643. 
See  Cole  v.  City  of  Newbury  Post,  129  Mass.  594;  37  Am.  Rep.  294. 

Or  moving  buildings  in  streets. —  Graves  v.  Shattucli,  35  N.  H.  257. 

A  rope  across  a  street  by  order  of  the  municipal  authorities  to  allow  a 
parade  of  the  fire  department. —  Simon  v.  City  of  Atlanta,  67  Ga.  618;  44 
Am.  Rep.  739. 

A  stairway  on  the  street  side  of  a  building  not  encroaching  upon  the 
sidewalli.— Fitzgerald  v.  Berlin,  51  Wis.  81;  37  Am.  Rep.  814, 

A  post  at  the  corner  of  a  city  street  to  protect  a  shade  tree,  though 
partly  concealed  by  grass  and  weeds. —  Willington  v.  Gregson,  31  Kan. 
99;  47  Am.  Rep.  482. 

But  a  hackney  coach  stand  may  be  a  nuisance  notwithstanding  a  city 
ordinance  permitting  it. —  Branahan  v.  Hotel  Co.,  39  Ohio  St.  333;  48 
Am-  Rep.  457.  See  Dennis  v.  Sipperly,  13  Hun,  69;  Turner  v.  Holtzman, 
54  Md.  148. 

A  watertank  in  the  center  of  a  street  occupying  one-half  of  its  width 
and  the  erection  and  operation  of  a  steam  engine  in  connection  there- 
with.—City  of  Morrison  v.  Hinckson,  87  111.  587;  39  Am.  Rep.  77. 

A  market-house. —  Savannah  v,  Wilson,  49  Ga.  476;  State  v.  Mobile, 
5  Port.  279. 

But  a  city  having  established  a  market  in  a  portion  of  a  street  con- 
demned for  that  purpose,  no  action,  it  has  been  held,  can  be  maintained 
by  an  adjoining  owner,  by  reason  of  the  incidental  obstruction  of  the 
street  by  the  collecting  of  wagons  in  the  neighborhood  and  the  sale  of 
produce  therefrom,  where  the  same  is  under  police  regulation. —  Henkel 
V.  Cily  of  Detroit,  49  Mich.  249;  43  Am.  Rep.  464. 

A  collection  of  carts  in  the  streets  for  the  reception  of  slogs  has  been 
held  a  nuisance. —  People  v.  Cunningham,  1  Denio,  524. 

But  a  sleigh  standing  ten  or  fifteen  minutes  in  a  village  road  is  not  an 
obstruction  for  which  the  town  is  liable. —  Sikes  v.  Manchester,  59  la.  65. 

A  temporary  obstruction    caused  by  the    delivery  of    cars  on  skids 


OB8TUUCTIONS    IN    lIKillWAVS.  139 

[111]  So  also  where  there  is  :i  power  i^iveii  to  iiiterfero 
with  IX  highway,  tliat  power  or  license  must  ho  strictly 
-iieil,  [112]  and  if  not,  the  interference  beini^  a 
...iL-reut  thing  to  that  which  is  permitted  or  ordered,  is  a 
public  nuisance  (^),  and  the  question  of  negligence  does 
not  arise. 

But  frequently,  in  the  very  act  of  doing  repairs  or  other 
necessary  work  in  or  near  the  highway,  the  highway  has  to 
be  obstructed  and  the  public  put  in  some  danger.  It  then 
omcs  the  duty  of  the  person  so  lawfully  interfering  with 
..J  highway  to  see  that  ordinary  and  reasonable  caro  is 
tjikon  in  the  mode  of  interference,  and  to  provide,  if  neces- 
sary, proper  safeguards,  bridges,  scaffoldings,  etc.,  and  to 
•■  iintain  them  as  long  as  they  are  required  (Z).     So  if  per- 

^  have  by  Act  of  Parliament  a  right  to  take  up  the  pave- 
|roent,  tbey  must  be  careful  lest  in  relaying  stones  they  are 

'•  so  as  to  admit  of  a  ]iru(lent  and  careful  person  sup- 
,      iQg  them  to  be  safe  when  they  are  not  (m). 

And  where  a  power  or  license  is  given  to  interfere  with  a 

ft)  8«e  Shearman,  8. 3W.    See  Rep.  r.  Co.,  50  Mc.  ISO.]  —  [Citj-  of  Newark  r. 

•  I  TcloKTaph  Co.,  9  Cox  C.  C.  174 ;  3  D.lawarc,  L.  &  W.  K.  Co.,  42  N.  J.  Eq. 

K.7?;  and  Attorney-General  r.  Kly,  lOG;  7  Atl.  Uep.  123;  Sheldon  f.W.  U.Tel. 

i:y.  Co.,  I..  U.  6  Kq.  106;  4  Ch.  104  ;  38  Co.,  ."il  Ilun,  591 ;  4  N.  Y.  S.  Rep.  520.] 
t'h.  258;  Shearman,  372;  Buxton  v.  (/)  Sec  Shearman,  ba.  358,376. 

Uy.  Co.,  L.  U.  3  Q.  B.  rm  ;  37  L.  J.  (m)  Drew  r.  New  Klver  Co.,  6  C.  &  P. 

i98.    (Stale  r.  Morris,  etc.,  R.  Co.,  754;  [Ix)wrey  v.  Brooklyn,  etc.,  R.  Co.,  4 

.    ...  J.  L.  437;  SUte  v.  Grand  Trunk  R.  Abb.  N.  C.  32]. 

pcrosfl  a  sidewalk  may  not  be  a  nuisance,  provided  sufficient  space  is  It^ft 
'^n  ihe  other  side    of    the  roadway. —  Matthews  v.  Kelsey,  58  Me.  Stl; 

Welsh  V.  Wilson,  N.  Y,  Ct.  App.,  29  Daily  Res.  20.5.     See  Welsh  v. 

-)n,  101  N.  Y.  254;  54  Am.  Rep.  C98;  Jochera  v.  Robinson,  72  Wis. 
il".n«;    39  N.   W.    Rep.  383;    Neitzey    v.     Baltimore    &     P.     R.     Co.,    5 

F lackey,  34 . 
A  fruit  stand.—  Barling  v.  West,  29  Wis.  307;  contra.  State  v.  Ber- 
etta,  73  Ind.  185;  38  Am.  Rep,  117. 
A  brick  wal',  the  remains  of  a  burnt  building  on  the  edge  of  a  side- 
walk (Klley  V.  Kansas,  69  Mo.  102) ;  but  not  at  a  di.stance  from  a  public 
nrect.— Cain  r.  Syracuse,  29  Ilun,  105;  95  N.  Y.  83. 
I    Sacks  lying  on  the  road  side.— Houghtaling  v.  Shelby,  51  Hun,  598;  3 
N.  Y,  8.  Rep.  904. 


140       NEGLECT    OF    DUTIES    REQUIRING    ORDINARY    CARE. 

highway  it  is  an  implied  condition  that  at  least  ordinary 
care  shall  be  taken  {n)  ;  and  where  privileges  are  bestowed 
upon  corporations  with  such  powers,  something  more  than 
ordinary  care  is,  as  we  shall  see,  demanded.  Where  the 
plan  or  mode  of  executing  the  work  is  not  pointed  out  by 
the  statute,  that  plan  is  to  be  adopted  which  is  best  calcu- 
lated to  subserve  the  object  of  the  work,  and  care  must  be 
taken  in  its  adoption  (o). 

How  far  corporations  as  distinguished  from  individuals 
are  protected  by  showing  that  they  have  carefully  selected 
the  persons  best  competent  to  give  them  a  plan,  or  are  hke 
[113]  individuals  bound  to  see  the  execution  of  it,  see 
Ch.  III.,  s.  6,  2^o^^i  Corporations. 

So,  also,  a  corporation  is  liable  for  the  negligence  of 
another  person  whom  it  has  authorized  to  do  work  upon  a 
highway  for  his  own  benefit,  but  over  which  the  corporation 
ought  to  exercise  control  (p),  as  in  the  case  of  a  private 
occupier  authorized  to  interfere  with  the  drains  communicat- 
ing with  the  main  sewers  (q). 

Every  one  who  lawfully  interferes  with  a  public  highway 
so  as  to  render  it  dangerous  to  passengers  is  bound  to 
guard  against  such  danger,  and  if  he  does  not  he  is  liable 
to  an  action  for  negligence  (r). 


(n)  Brine  ».  Great  Western  Ry.  Co.,  2  (q)  See  cases  cited  by  Shearman,  8. 

B.  &.  S.  402;  Jones  v.  Bird,  5  B.  &  Aid.  400.    As  to  notice  of  defect  to  corpora • 

837;  Whltehouse  V.   Fellowes,  10  C.   B.  tion,  see  Ch.  III.,  s.  6,  Corporations. 

N.  S.  765;  Brownlow  v.  Met.  Board,  16  0.  (r)  Whltely  v.  Pepper,  2  Q.  B.  D.  276; 

B,  N.  S.  546.    This  comes  within  the  law  45  L.  J.  Q.  B.  436 ;  and  if  there  are  two 

relating  to   corporations   acting  under  modes  of  doing  work  on  the  highway,  to 

statutory  powers,  ch.  III.,  8.  6.  choose  the  least  dangerous;  Cleveland 

(o)  Shearman,  89.,  372,  373.  v.  Spier,  16  0.  B.  N.  S.  399.    [Beck  r.  Car 

(p)  Shearman,  s.  400.    [Baltimore   ».  ter,  68  N.  Y.  283;  Durant  v.  Palmer,  2.1 

Pendleton,  15  Md.  12;  Bacon  v.  Boston  N.    J.    L.    544;   Ottumwa   v.   Parks,  43 

3  Cueh.  174;  Chicago  t).  Uobblns,  4  Wall.  la.   119;  Murphy  v.  Brooks,  109  Maes. 

659;  Hawks  v.  Northampton,  116  Mass.  302.]  —  City     of      Lewiston    v.    BootN 

420;  Indianapolis  v.  Doherty.  71  Ind.  5.  (Idaho),    34   Pac.    Rep.   809;   Baker   r 

In  the  absence  of  proof  of  want  of  care  Borough  of  North  East,  151  Pa.  St.  234; 

on  the  part  of  the  corporation.  It  is  not  24  Atl.  Rep.  1079;  30  W.  N.  C.  673;  Pine 

liable  for  the  negligence  of  the  employes  Bluff  W.  &  L.  Co.  v.  Derrlsseaux,  56  Ark. 

of  the  lot  owner.    Masterson  v.  Mt.  Ver-  132 ;  19  S.  W.  Rep.  428 ;  Wallace  f.  Evans, 

non,  58  N.  Y.  391 ;  Washburn  Mfg.  Co.  v.  43  Kan.  509;  23  Pac.  Rep.  596;  Baltimore 

Worcester,  116  Mass.  460.]  &  L.  T.  Co.  v.  Cassell,  66  Md.  419;  Mur- 


LIAIULIIIKS    OF    COUrOHATIONS.  141 

And  it  can  scarcely  bo  doubted  that  whoro  a  person  un- 
lawfully places  upon  a  highway  an  instrument  or  thing 
which  is  dangcious  to  passers-by,  he  is  bound  to  take  all 
uccessarv  precaution,  and  is  unswerahle  for  the  conse- 
quences of  not  doing  so  in  an  action  of  tort;  and  even  if 
ho  do  so  lawfnlly  he  is  bound  to  take  care,  and  is  liable 
to  an  action  of  negligence  if  he  omits  to  do  so  (.s). 

The  owner  of  laiul  adjoining  a  highway  is  bound  as  we 
hare  seen  not  to  interfere  with  the  safety  of  persons  using 
the  highway  (f);  and  in  repairing  or  erecting  premises 
whore  it  is  lawful  to  encroach  during  the  progress  of  the 
work,  such  encroachment  must  bo  made  with  ordinary  care, 
and  any  danger  guarded  against  (u). 

[Ill]  Corporations  or  persons  undertaking  to  manage 
highways  are  not  insurers  against  later  defects,  they  are 

••*•-   r.    Suburban    U.    T.    Co.     (N.  Y.),  (<)  See  b.  2,  nn<e,  Real  I'roperty. 

Y.  S.  llt'i).  >v57;  Evansvlllo  &  T.  U.  (u)  Shearman,  h.SGi!;  [Wood  r.  Mears 

o.r.  Crist,  IIG  Ind.  440;  I'.tN.  K.  Kcp.  12  Ind.  Sll;  llundhaascnr.  liond.St;  Wis. 

3lo;ColllnB  r.  Leafy,  124  I'a.  St.  203;  10  2'.);  Vanderpool  v.  IIu88on,28  ISarb.  19G; 

At.  Rep,  :<»;  23  W.  N.  C.  2W.J  Jackson  r.  Schmidt,  14  La.  An.  80(5,  and 

(»)  Clark  c.  Chambers,  48  L.  J.  427;  guard  excavations.  Murphy  r.    Urooke, 

»  Q.   B.   D.   327    (barrier   with  6plkte);  100  Mas.s.  202  ;  Clark  f.  Fry,  8  Ohio  St.  358; 

:   trig  V.  Mobb8,  3  Kx.  Div.  208  (van  and  IJeck  v.  Carter,  66  N.  Y.  283;  2)  Am.  Rep. 

.:io  by  Bide  of  road  frightened  horse  175].— [Landru   v.   Lund,  38  Minn.   638; 

:.p).  — [Koor.  Crlmmin8.28  N.  Y.  S.  38  N.    W.    Kep.  660;  Day  r.  City  of  Mt. 

75ti;  8  MIdc.  Rep.  400;  ISarry  v.  Ter-  Pleasant,  70  la.  103;  30  N.  W.  Rej).  :«3; 

Son,  72  Cal.  2.S4 ;  13  Pnc.    Rep.  057;  Wellerv.  McCormick,  52  N.  J.  L.  470;  10 

r.  urson  v.  ChlcaRO  A  W.  M.  Ry.  Co.,  04  Atl.  Rep.   IIOI.J 

Midi.  821 ;  31  N.  W.  Rep.  548. J 

A  municipal  corporation  is  liable  for  injuries  caused  by  dan-ierous  ex- 
CATationH  left  unguarded  in  its  streets. —  Wilson  v.  City  of  Wheeling,  19 
W.  Va.  323;  42  Am.  Rep,  780;  City  of  fronton  v.  Kelley,  38  Ohio  St, 
50;  Circlevllle  v.  NendiiiK,  41  Ohio  St.  405;  Dressell  v.  Kingston,  32 
Hon,  533;  Hrusso  v.  Bufifalo,  90  N.  Y,  G79;  Russell  v.  Columbia,  74  Mo. 
480;  41  Am.  Rep,  325;  City  of  South  Omaha  v.  Cunningham,  31  Neb,  31G; 
47  N,  W.  Rep,  930;  Glasier  v.  Town  of  Hebron,  62  Hun,  137;  IG  N.  Y.  S. 
j  Rep.  603;  131  N.  Y,  447;  30  N,  E,  Rep.  597;  McGrath  r.  Village  of 
I  Bloomer,  73  Wis.  29;  40  N.  W,  Rep,  585;  Fay  w.  Town  of  Lindley,  58 
Hun,  601;  11  N,  Y.  S,  Rep,  355;  Hudson  v.  Inliabitants  of  Marlborough, 
liS4  Mass,  218;  28  N.  E,  Rep,  147,     See  ante,  p.  82, 

That  the  work  is  placed  in  the  hands  of  a  contractor  will  not  relieve 
the  corporation  from  liability  (Welsh  v.  St,  Louis,  73  Mo.  1 ;  Brusso  v. 


142      NEGLECT   OF   DUTIES    REQUIRING    ORDINARY    CARE. 

only  [115]  bound  to  take  care  (x)  and  as  far  as  their 
statutory  duties  are  concerned,  something  more  than  ordi- 
nary care  (y). 

(x)  Shearman,  s.  398;   [VMcksburg  v.  15;  51  N.  W.   Rep.  696;  Birmingham  v. 

Ilennesy,   54   Miss.    391;    IJlake   v.    St.  Rochester  City  &  B.  R.  Co.,  137  N.  Y.  18; 

Louis,  40  Mo.  569;  Perlvins  v.  Lafayette,  32  N.  E.  Rep.  995.] 

C8  Me.  152;  Rapho  v.  Moore,  68  Pa.  St.  (//)  See  post,  Ch.  III.,  e.  6,  Corpora- 

404;  Wheeler  i\  Westport,  30  Wis.  392].—  tions  performing  Statutory  Duties. 
[Wakeham  v.  Tp.  of  St.  Clair,  91  Mich. 

Buffalo,  90  N.  Y.  679;  see  Jacksonville  v.  Drew,  19  Fla.  106;  45  Am.  Rep. 
5;  Dressell  v.  Kingston,  32  Hun,  533),  though  it  has  no  control  over  the 
work  and  the  contractor  stipulates  that  he  shall  be  liable  for  accidents.— 
Wilson  V.  City  of  Wheeling,  19  W.  Va.  323. 

Obstructions  in  the  highway  frightening  horses. —  Bennett  v.  Lovell, 
12  R.  I.  166;  34  Am.  Rep.  628  (tubing  and  machinery  left  in  highway); 
Milarky  V.  Foster,  6  Ore.  378;  25  Am.  Rep.  531;  Clinton  v.  Howard,  42 
Conn.  294  (pile  of  stones) ;  Lake  v.  Millikin,  62  Me.  240;  Jones  v.  Housa- 
tonic  R.  Co.,  107  Mass.  264. 

A  barrel  of  whitewash  left  over  Sunday  on  the  side  of  the  road  was 
held  not  such  an  obstruction  as  would  render  defendant  liable  for  in- 
juries received  by  plaintiff's  horse  frightened  by  its  appearance. —  PioUet 
V.  S-immers,  lOG  Pa.  St.  95;  24  Am.  Law  Reg.  235,  note. 

A  municipal  corporation  may  become  liable  for  suffering  objects  to 
remain  in  the  road  calculated  to  frighten  horses. —  Bennett  v.  Fifield,  13 
R.  I.  139;  43  Am.  Rep.  17;  Cressy  v.  Hestonville,  etc.,  Co.,  75  Pa,  St.  88; 
Stanley  v.  City  of  Davenport,  54  la.  463 ;  37  Am.  Rep.  216  (steam  motor) ; 
contra,  Sparr  v.  St.  Louis,  4  Mo.  App.  572  (In  the  latter  case  the  use  was 
lawful);  Young  v.  New  Haven,  39  Conn.  435;  12  Am.  Rep.  400,  note 
(steam  roller) ;  Chicago  v.  Hoy,  75  111.  530  (dead  animal) ;  Fritsch  v. 
Allegheney,  91  Pa.  St.  226;  Ayer  v.  City  of  Norwich,  39  Conn.  376;  Bloor 
V.  Town  of  Dellafleld,  68  Wis.  273;  34  N.  W.  Rep.  115  (mortar-box) ;  Tp. 
of  North  Manheim  v.  Arnold  (Penna.),  13  Atl.  Rep.  444  (lumber); 
Cairncross  v.  Village  of  Pewaukee,  78  Wis.  66;  47  N.  W.  Rep.  13  (steam- 
boat) ;  Wilson  v.  Town  of  Spafford,  10  N.  Y.  S.  Rep.  649  (pile  of  stones). 
See  Beach  Pub.  Corp.,  §§  1513,  1517n. 

But  a  town  is  not  liable  to  a  traveler  whose  horse  takes  fright  at  a  large 
natural  boulder  imbedded  in  the  earth  in  the  line  of  the  highway.— 
Barrett  v.  Town  of  Walworth,  19  N.  Y.  S.  Rep.  557. 

"  The  prevailing  doctrine  is  that  if  the  town,  city  or  other  public 
corporation  charged  by  law  with  the  care  of  highways  permits  objects  to 
remain  thereon  which  from  their  nature  have  a  tendency  to  frighten 
horses  of  ordinary  gentleness  and  docility  and  the  horse  of  a  traveler 
himself  in  the  exercise  of  due  care  takes  fright  at  such  an  object  and 
runs,  and  notwithstanding  duo  efforts  to  restrain  him  on  the  part  of  his 


DLTV    T(J    I'KOVIDK    ItAlM  .N(  ;s. 


143 


riie  omission  of  suitable  railin<;s  or  walls  to  a  hridiro  is 
a  negligent  act,  and  cannot  bo  excused  by  showing  that 
such  barriers  might  incieasc  the  liability  of  the  bridge  to 
destruction  b}-  Hoods  (z). 

Railway  bridges  over  highways  should  be  kept  in  i)roper 
repair,  and  the  companies,  whoso  duty  it  is,  at  common 
law,  to  repair  them,  are  bound  to  uso  due  care  in  the 
inspection  of  the  bridges  and  in  the  repair  of  them,  so  as 
not  to  cause  inj\ny  to  persons  passing  along  the  high- 
way {a). 

Draw-bridges  should  bo  properly  constructed,  and  be  fur* 
Dished  with  proper  machinery  for  raising  the  same  upon  the 
passing  of  vessels,  and  should  bo  protected  by  proper  bar- 
riers, or  lights,  or  other  warnings  for  the  advantage  of  pas- 


(«)  Shearman,  s.  253 ;  [citing  Bronson 
V.  Southbury,  37  Conn.  l;'!t.  As  to  the 
obllKntlon  to  initlntnin  8ultal)lo  rnlllngs, 
Newlin  Tp.  f.  Davis,  77  Vti.  St.  317;  Tit- 
comb  r.  Fltcliburj;  U.  Co.,  12  Allen,  254; 
Woodman  r.  Notliln)jrhum,4!tN.  H.387.  — 
(Board  Com'ra  rarkc  County  v.  Sappon- 
flold.  6  Ind.  App.  577  ;  33  X.  E.  Kep.  1012 ; 
Flnncgran  v.  Tp.  of  Foster,  1G3  Pa.  St. 
135;  29  AU.  Hep.  7W);  Board  Com'rs  r. 
CreT«»lon,  133  Ind.  39.  There  la  no 
oblifratlon  to  provide  railings  suitable 
for  travelers  to  lean  or  .sit  on.  Occult 
r.  Kittery  Bridge  Co.,  .W  Me.  248;  Stlck- 
ncy  r.  Salem,  3  Allen,  374;  [Langlois 
r.  City  of  Cohoes,  58  Ilun,  226;  11  N.  Y. 
&  Bep.  908.] 


(a)  Kearney  v.  L.  B.  &  S.  C.  Ry.,  L.  R. 
6  Q.  B.  7.'>();  40  L.  J.  Q.  B.  285  (stono  fell 
from  bridge  on  passer-by).  SenGroto  r. 
Chester,  etc.,  liy.  Co.,  2  E.xch.  ill ;  South 
and  North  .Mnbama  Uy.  Co.  r.  McLen- 
den,  V,:i  Ala.  jnc. ;  Tltcomb  r.  KItchburg, 
12  Allen,  254;  White  r.  Qulncy,  117  Mass. 
4.{0;  [(Jates  r.  Pennsylvania  K.  Co.,  150 
Pa.  St.  no;  24  Atl.  Uep.  6:!S;  80  W.  X.  C. 
329;  Kembert  f.  South  Carolina  By.  Co., 
31  S.  C.  300;  9  S.  E.  Uep.  96S;  Pittsburgh 
&  L.  E.  K.  Co.  r.  Jones,  111  Pa.  St.  201; 
50  Am.  Rep.  260;  City  of  Newark  r. 
Delaware,  L.  &  W.  R.  Co.  (N.  J.),  7 
Atl.  Uep.  123;  Gray  r.  Borough  of  Dan- 
bury.  54  Conn.  574;  10  AU.  Rep.  198; 
Tierney  v.  Troy,  41  Ilun,  120.] 


driver  ilamacjes  ensue,  the  corporation  must  pay  such  damaf^es." — 20 
C€nt.  Law  Jour.  108;  citing  among  other  cases  Dimock  v.  Sufflt-lcl,  30 
Conn,  li-'ti;  Morse  v.  Richmond,  41  Vt.  435;  Forshay  v.  Glenhavon,  25 
Wis.  2SS;  Kelly  v.  Fon  du  Lac,  31  Wis,  179;  Card  v.  Ellsworth,  C5  Me. 
547;  Winship  v.  Eofleld,  42  N.  IL  197. 

This  rule  docs  not  prevail  in  Massachusetts  and  Michigan. —  Cook  v. 
MonUgue,  115  Mass.  571;  Agnew  r.  Corunua,  55  Mich,  42S;  20  C.  L.  J.  100. 

The  statutory  liability  of  a  city  for  personal  injuries  is  conUned  to  de- 
lects in  the  streets  arising  from  their  being  out  of  repair,  and  does  not 
cover  objects  on  the  street  but  forming  no  part  thereof,  as,  e.  r/.,  a  pile 
of  lumber  encroaching  thereon.— McArthur  r.  City  of  Saginaw,  68  Mich- 
357;  21  Rep.   18. 


144      NEGLECT   OF   DUTIES    REQUIRING   ORDINARY   CARE. 

sengers  across  the  bridge,  and  for  negligence  in  this  respect 
the  proprietors  will  be  liable  (6);  probably  for  something 
[116]  less  than  ordinary  negligence.  So  long  as  they 
keep  the  bridge  open  and  take  tolls,  so  long  are  they  liable 
for  negligence,  even  although  they  give  notice  to  travelers 
of  the  insecurity  of  the  bridge  (c). 

It  is  said  that  the  destruction  of  a  bridge  by  an  extraor- 
dinary flood  raises  no  presumption  of  negligence,  but  where 
it  is  subject  to  floods  it  must  be  so  constructed  as  to  resist 
them  (d). 


(6)  Shearman,  b.   250;   [Weisenberg  Rep. 579;  Greenwoods.  Town  of  West- 

V.  Wlnneconne,  56  Wis.  667;     Pennsyl-  port,  60  Fed.  Rep.  560.] 

vania  R.  Co.  v.  Central  R.  Co.,  59  Fed.  (c)  Shearman,  s.  250. 

Rep.  190;  Central  R.  Co.  v.  Pennsylvania  {d)  Shearman,  s.  250,  note  3;  [Citing 

U.  Co.,  59  Fed.  Rep.  192;  8  C.  C.  A.  86;  Livezey  v.  Philadelphia,  64  Pa,  St.  106, 

Van  Etten  v.  Town  of  Westport,  60  Fed.  and  Gray  v.  Harris,  107  Mass.  492]. 


Bridges. —  IVIunicipal  corporations  are  liable  for  injuries  caused  by  de- 
fects in  bridges  within  their  limits  as  part  of  the  streets. —  Chicago  «. 
McGinn,  61  111.  266;  Humphreys  v.  County,  56  Pa.  St.  204;  Burritt  v. 
New  Haven,  42  Conn.  514;  City  of  Denver  v.  Dunsmore,  7  Colo.  328; 
Eudora  v.  Miller,  30  Kan.  494;  Stebbins  v.  Keene,  55  Mich.  552;  Dalton 
V.  Upper  Tyrone  Tn.,  137  Pa.  St.  18;  20  Atl.  Rep.  637;  26  W.  N.  C.  489; 
City  of  Goshen  u.  Myers,  119  Ind.  196;  21  N.  E.  Rep.  657;  Langlois  v. 
City  of  Cohoes,  58  Hun,  226;  11  N.  Y.  S.  Rep.  908;  Walker  v.  City  of 
Kansas,  90  Mo.  647;  12  S.  W.  Rep.  894;  City  of  Shermans.  Nairey,  77 
Tex.  291;  13  S.  W.  Rep.  1028;  County  Com'rs  v.  Wise,  71  Md.43;  18  Atl. 
Rep.  31;  Spaulding  v.  Town  of  Sherman,  75  Wis.  77;  43  N.  W.  Rep. 
558;  Tierney  w.  Troy,  41  Hun,  120.  See  Elliott  on  Roads  and  Streets, 
pp.  44,  45. 

This  action  may  be  brought  in  the  Federal  courts.— City  of  Boston 
V.  Crowley,  38  Fed.  Rep.  202. 

Under  statutes  in  some  of  the  States,  actual  or  constructive  notice  of 
the  defects  is  necessary  to  maintain  an  action. —  Moore  v.  Kenockee  Tp., 
75  Mich.  382;  42  N.  W.  Rep.  944;  McKeller  y.  Tp.  of  Monitor,  78  Mich. 
485;  44  N.  W.  Rep.  412;  City  of  Atlanta  ».  Buchanan,  76  Ga.  585. 

A  city  bound  to  maintain  a  bridge  is  not  liable  for  an  injury  sustained 
by  a  vessel  because  of  the  draw  being  of  less  width  than  that  prescribed 
by  statute  or  because  of  the  carelessness  of  the  superintendent  of  the 
bridge  by  reason  of  which  the  vessel  was  detained,  ia  the  absence  of 
express  statutory  liability.— French  v.  Boston,  129  Mass.  592;  37  Am. 
Rep.  393. 

A  city  has  been  held  liable  for  an  injury  sustained  in  consequence  of  the 


BRIDGES CONSTRUCTION   AND   REPAIR.  145 

[117]  Coiponitions  or  })rivatc  persons  who  take  tolls 
under  Acts  of   Parliament  for  the  use  of  canals  are  bound, 

defectiveness  of  a  bridge,  althou<;h  nt  the  time  it  was  in  process  of  repair 
by  an  independent  contractor  (City  of  Jaclisonvlilc  v.  Drew,  19  Flu.  IOC; 
45  Aai.  Rep.  5);  so  of  county,  I'arli  v.  Board  Com'rs  (3  Ind.  App.  537; 
90  N.  E.  Rep.  147) ;  and  a  town  for  damages  done  to  land  by  the  building 
of  a  bridjie  in  such  a  manner  as  to  set  back  water  upon  It. —  Mootry  r. 
Town  of  Danbury,  45  Conn.  550;  3i)  Am.  Uep.  703.  But  see  Shieb  v.  Tp. 
of  Collier  rennsylvania.  11  Atl.  Kep.  3G6. 

The  fact  that  a  bridge  over  a  city  street  was  of  sufficient  height  to 
allow  ordinary  ciirrlaues  to  pass  under  it,  was  held  not  of  itself  enough 
to  discliarue  the  municipality  from  liability  to  one  injured  while  attempt- 
ing to  pass  under  it. — Sewellr.  City  of  Cohoes,  75  N.  Y.  46;  31  Am.  Kep. 
418.  But  where  plaintiff  was  struck  by  the  wheel  of  a  wagon  drawn  by 
runaway  horses  upon  a  bridge  owned  by  a  municipality,  the  fact  that  the 
bridge,  which  had  been  built  of  stone  fifty  years  before,  is  too  narrow 
for  present  use,  does  not  render  the  municipality  liable  for  the  injury. — 
Coonty  of  Lehigh  v.  Iloffort,  IIG  Pa.  Hi);  0  Atl.  Rep.  177. 

A  city  is  not  bound  to  erect  barriers  or  station  watchmen  for  the  pro- 
tection of  young  children  playing  about  a  swing  bridge. —  Gavin  v.  Chi- 
cago, 97  111.  OG.  A  city,  it  lias  bei-n  held,  is  not  bound  to  guard  the 
approaciies  of  abridge  owned  by  the  State  on  lands  of  the  State  crossing 
a  State  canal  within  the  city  boundaries  constructed  for  canal  purposes, 
but  commonly  used  by  the  public  as  part  of  the  public  highway. —  Car- 
penUT  r.  City  of  Cohoes,  81  N.  Y.  21;  37  Am.  Rep.  4G8.  In  the  absence 
of  statute  counties  are  not  bound  to  repair  bridges. —  Wood  v.  Tipton 
Co.,  7  Baxt.  112;  32  Am.  Rep.  5G1  ;  Hill  v.  Livingston,  12  N.  Y.  52;  En- 
sign 0.  County  of  Livingston,  25  Hun,  N.  Y.  20;  Huffman  v.  San  Joaquin, 
21  Cal.  42G;  White  r.  Commissioners  of  Chowan,  'JO  N.  C.  437;  47  Am. 
Hep.  534;  Bailey  v.  Lawrence  County  (S.  1).),  59  N.  W.  Rep.  21D;  Board 
Com'rs  El  Paso  County  r.  Bish,  18  Colo.  474;  33  Pac.  Rip.  184;  Pundman 
t.  St.  Charles  County,  110  Mo.  594;  19  S.  W.  Rep.  733;  Ileigel  v.  Wichita 
County,  84  Tex.  392;  19  S.  W.  Rep.  5G2.  Nor  is  one  contracting,  with- 
out Ixjud,  wiUi  the  county,  to  keep  a  bridge  In  repair  liable  for  an  Injury 
caused  l)y  a  defect  therein.— Williams  v.  Stillwell,  88  AJa.  332;  G  So. 
Rep.  914. 

This  doty  is  imposed  in  some  States  by  statutes  upon  counties  (State 
V.  Board  of  Commissioners,  etc.,  80  Ind.  478;  41  Am.  Rep.  821;  Wilson  r. 
Jefferson,  13  la.  181;  Board  Com'rs  Sulliv;iu  County  r.  SiS;*on,  2  Ind. 
App.  811;  28  N.  E.  Rep.  374;  Board,  etc.,  of  Morris  County  v.  Hough  (55 
N.  J.  L.  G28),  28  Atl.  Rep.  8G,  in  others  upon  townships. —  State  r.  Bos- " 
cawen,  32  N.  II.  331 ;  .Medina  v.  Perkins,  48  Mich.  G7. 

Where  a  bridge  is  situated  partly  within  the  limits  of  a  town  and  partly 
within  tlie  limits  of  a  village,  and  managed  and  controlled  by  both,  a 
liability  for  negligence  may  arise  on  the  part  of  both. —  Weisenberg  v. 

10 


146      NEGLECT   OF   DUTIES    REQUIRING   ORDINARY    CARE. 

as  we  think,  to  exercise  something  more  than  ordinary  care 
in  the  management  of  such  property  (e).     But  they  are 

(e)  Lancaster  Canal  Co.  v.  Parnaby,  fendants  had  notice  of  obstruction), 
11  Ad.  &  El.  223  (boat  sunk  in  canal ;  de-       See  Corporation,  post,  Ch.  III.,  s.  6. 

Winneconne,  56  Wis.  667.     See  Lymaa  v.  Hampshire  County,  140  Mass. 
311. 

Where  the  corporate  limits  of  a  village  bound  upon  a  navigable 
stream,  its  liability  for  injuries  caused  by  defects  in  an  adjacent  bridge 
extend  to  the  center  of  the  stream,  —  Village  of  Marseilles  v.  Kiner, 
34  111.  App.  355;  Village  of  Marseilles  v.  Hovpland,  124  111,  547;  16  N.  E. 
Rep.  883,  affirming  23  111.  App.  101, 

But  v?here  a  county  purchased  of  a  private  owner  a  bridge  one  end  of 
which  abutted  upon  a  city  and  the  approach  to  the  city  bridge  on  the  city 
side  was  constructed  over  land  not  included  in  any  city  highway,  it  was 
held  that  unless  the  city  adopted  such  bridge  as  one  of  its  highways  the 
county  only  and  not  the  city  would  be  under  obligation  to  keep  it  in  re- 
pairs and  liable  for  injuries  caused  by  its  defective  condition. —  Bishop 
V.  City  of  Centralia,  49  Wis.  669, 

Ordinary  care  is  required  of  counties  in  the  construction  and  repair 
of  bridges. —  Board  of  Commissioners  of  Howard  Co.  v.  Legg,  93  Ind. 
523;  11  N.  E.  Rep.  612.  Thus  a  county  is  responsible  for  injuries,  where 
incompetent  repairs  were  knowingly  employed, —  Wabash  County  v. 
Pearson  (Indiana),  22  N.  E.  Rep.  134.  See  Eastman  v.  County  of  Clack- 
amas, 32  Fed.  Rep.  24;  Cooper  v.  Mills  County,  69  la,  350;  County  of 
Knox  V.  Montgomery,  109  Ind,  69;  9  N,  E,  Rep,  590. 

For  obvious  defects  in  their  original  construction  which  they  have 
permitted  to  exist  they  would  be  liable. —  Rigony  v.  County  of  Schuylkill, 
103  Pa.  St.  382;  Board  Com'rs  Allen  County  v.  Creviston,  133  Ind.  39; 
32  N.  E.  Rep.  735. 

A  town  is  not  bound  to  keep  its  bridges  absolutely  safe  as  against 
extraordinary  and  unreasonable  loads. —  Wilson  v.  Town  of  Granby,  47 
Conn.  59;  36  Am.  Rep.  61;  O'Neil  v.  Tp.  of  Deerfleld,  86  Mich.  610;  49 
N.  W.  Rep.  596;  Yordy  v.  Marshall  County,  86  la,  340;  53  N,  W,  Rep. 
298;  Ciulow  v.  McClelland,  151  Pa,  St.  583;  25  Atl.  Rep,  147;  31  W.  N.  C. 
145,  following  McCorraick  v.  Tp.  of  Washington,  112  Pa.  St.  185;  4  Atl. 
Rep.  164;  Board  Com'rs  Vermillion  County  v.  Chipps,  131  Ind.  56;  29 
N.  E.  Rep.  1066;  City  of  Wabash  ?j.  Carver  (Ind),  26  N,  E,  Rep.  42; 
Clapp  V.  Town  of  Ellington,  22  Abb,  N.  C.  387;  3  N.  Y.  S,  Rep.  516. 

Knowledge  of  the  unsafe  condition  of  a  bridge  is  not  such  contributory 
negligence  as  will  bar  an  action  for  damage  by  one  injured  in  passing 
over  it. —  Board  of  Commissioners  of  Madison  County  v.  Brown,  89  Ind. 
4*;  County  Com.  Prince  George's  County  V.  Burgess,  61  Md,  29;  Monon- 
Rahela  Bridge  Co.  v.  Bevard  (Pa.),  11  Atl.  Rep.  575;  Gulf,  C.  &  S.  F. 
Ry.  Co.  V.  Gasscamp,  67  Tex.  545;  8  S.  W.  Rep.  227.     This  is  a  ques- 


imiDQES  —  CONSTllUCTION    ANO    UKI'AIU.  117 

not  insurers,  [H^J  ii'^l  111*0  not  li:il)lo  for  injuries  arisinjj 
from  circinnstancos  of  which  they   had  no  knowledge  {/). 

So,  also,  a  canal  company  must  see  that  itscaual,  docks, 
locks,  wharves  and  bridges  are  properly  constructed  and 
'MJinaged  ( v ). 

As  to  injuries  to  adjoining  hinds  by  reason  of  overtiow 
or  bursting  of  banks,  the  proprietors  are,  at  the  least,  liable 
for  negligence  (  //  ). 

The    owners    of   a    canal    i)laced    planks    in  it  so   as   to 

(/I   K\<li.in>{e  Fire  Ins.  Co.  v.  Ocla-  27  I>.  .1.  Ex.  2.1.     If  Imlecd  they  nrt'  not 

waru  Canal  <  o.,   10  Bos w.   ISO;   ll'eun-  bound  to  keep  It  at  their  peril,  sec  ^ii^o, 

•jrlvania  Cnr.nl  Co.  i-.  Burd,  90   I'a.  St.  p.  ii.    [Morris  Canal  Co.  r.  lt\  crson,  27 

Ml;  «.  f  Xt  Am.  Itep.  rao  ]  N.  J.  L.  4.'>fi,  476;  Proprietors  of  (^ulncy 

(p)  AllorneyGcneral    v.     Bradford  Canal  r.  Ncwcomb,  7  Met.  27i;.J— [Dela- 

NftvlRatlon  Co., ;«  L.  J.  Ch.  61!)  (this  was  ware  &  II.  Canal  Co.  v.  Goldstein,  125  Pa. 

a  case  of  nuisance) ;  Gautrol  i-.  Egerton,  St.  21i; ;  17  At.  liep.  442 ;  23  W.  N.  C.  4'.W). 

L.  R.  2  C.  1*.  371;  Manley  r.  St.  Helen's  In  New  York  a  statute  makes  the  State 

CanalCo.,2  n.&  N.  640;  '27  L.  J.  Ex.  164  liable  for  damages  by  Its  canals. —Wood- 

(iwIdk  bridges).— [Brearley    r.    Canal  man  v.  People,  127  N.  Y.  3'J7;28  N.   E. 

Co.,  80  N.  J    Law,  236.  followed  In  Perry  Uep.  20;  Bldelman  r.   Slate,   110   X.    Y. 

r.  Pennsylvania  U.  Co.,  5.5  X.  J.  L,  178;  232;  IS  N.  E.  Uep,  115;  Bowcn  v.  State, 

58  Al.  Kep.  829  ]  108  N.  Y.  166;  15  N.  E,  Rep.  56.  J 

(A)  Whitehoaac  r.  Birmingham  Canal, 

lion  for  the  jury.— Taylor  v.  Town  of  Constable,  Gl  Hun,  022;  15  N. 
Y.  S.  Rep.  795;  131  N.  Y.  697;  30  N.  E.  Rep.  G3 ;  Wand  v.  Polk  County, 
88  la.  617;  55  N.  W.  Rep.  528;  Fisher  v.  Village  of  CambriclKc,  133  N.  Y. 
527;  80  N.  E.  Rep.  GG3. 

Walking  on  the  side  of  a  bridge  having  no  railing  or  barrier  Is  not 
negligence  pir  se,  us  where  one  side  was  so  obstructed  by  snow  and  ice 
as  to  turn  pedestrians  in  the  wagon  track,  and  plaintiff  walking  in  Ihc 
wagon  track  met  a  loaded  team,  and  In  endeavoring  to  avoid  it  fell  off 
the  exposed  side.—  Morrell  v.  Peck,  88  N.  Y.  398.  See  Vance  v.  City  of 
Franklin,  i  Ind.  App.  515;  30  N.  E.  Rep.  H9;  St.  Louis  Bridge  Co,  r. 
Miller,  13G  111.  405;  28  N.  E.  Rep.  1091;  Harwood  v.  Oakham.  152  Mass. 
421;  25  N.  E.  Rep.  G25;  Dale  v.  Webster  County,  76  la.  370;  41  N.  W, 
Rep. 1. 

But  if  a  bridge  Is  so  defective  as  to  be  practically  Impassable  It  Is  an 
act  of  negligence  to  walk  over  it. —  County  Com.  Prince  George's  Co,  r. 
Burgess,  61  Md.  29.  See  Morrison  u.  Shelby  County,  IIG  Ind.  431;  19 
N.  E,  Rep,  ;{1G;  Travis  r.  Town  of  Carrollton,  7  N,  Y,  S.  Rep,  231, 

Recklessly  driving  over  a  bridge  and  turning  off  so  abruptly  as  to 
suffer  injury  by  catching  the  wheel  of  a  carriage  In  an  obstruction  In  the 
highway  has  been  held  contributory  negligence. — Abernethy  v.  Van 
'iMnn,  .52  Mich.  383, 


148      NEGLECT   OF   DUTIES   REQUIRING   ORDINARY   CARE. 

heighten  the  bank  in  order  to  prevent  flood  water  from  a 
river  overflowing  their  premises,  and  the  water  being 
penned  back  flooded  the  plaintiff's  premises ;  it  was  held 
that  the  owners  were  not  liable.  The  water  was  not 
brought  there  by  them,  and  there  was  no  duty  not  to 
impede  the  flow,  as  in  the  case  of  a  natural  water-course  (i). 
A  canal  towing  path  is  a  public  highway  only  for  the 
purpose  of  a  towing  path  and  not  for  the  general  public  (j) ; 
and  a  canal  company  is  not  bound  to  fence  or  repair  it  as 
against  the  general  public,  and  an  action  of  negligence 
will  not  lie  for  their  neglect  to  fence  or  repair  (A;). 


[119]     Section  V. 

Neglect  of  Duties  by  Corporations  {not  performing 
Statutory  Duties). 

The  duties  of  corporations  are  in  general  prescribed  to 
them  by  the  charter  or  statute  of  incorporation,  and  the 
performance  of  those  duties  which  are  imperative  upon 
them  by  reason  of  such  charter  or  statute  are  such  as 
require  more  than  ordinary  care,  and  will  be  found  fully 
discussed  in  Ch.  III.,  s.  6,  post.  Those  duties  also  which 
devolve  upon  them  by  reason  of  their  having  invited  per- 
sons upon  their  premises,  or  taken  tolls  from  them  for  the 
use  of  their  property,  require  something  more  than  ordi- 
nary care  in  their  performance,  and  will  be  found  in  the 
same  portion  of  this  treatise. 

(i)  Nleld  V.  L.  &  N.  Ry.  Co.,  L.  R.  10  St.  73.    It   was   held    otherwise   where 

Ex.4.    [Where  a  canal  company  suffered  there  was  no  negligence  onthepartof 

one  of  Us  dams  to  become    lilled  with  the  company  In  safferlng  debris  to  accu- 

debrls  and  it  was  necessary  to  clear  it  mulate  in  its  dam.    Fehr  v.    Schuylkill 

out,  or  raise  its  height,  which  the  com-  Nav.  Co.,  69  Pa.  St.  101.] 

pauy  was  empowered  by  its  charter  to  (J)  R.  v.  Severn  Ry.  Co.,  2  B.  &  Aid. 

do,  and  they   raised  its    height    to    the  646. 

injury  of  an  adjoining  proprietor,  it  was  {k)  Binks  v.  S.  Y.  Ry.  Co.,  3  B.  &.  8. 

held  that  an  action  would  lie  therefor.  244;  32  L.  J.  Q.  B.  26. 
Schuylkill  Nav.  Co.r.  McDonough,33  Pa. 


NKOLECT   OF  DUTIES    UV    COKPORATION.  149 

It  limy  bo  hero  shortly  stated  that  corporations  Bvimo- 
times  undertake  tliities  which  they  are  not  bound  to  per- 
form by  reason  of  any  statute  or  character,  but  which  aro 
either  merely  indicated  for  the  exercise  of  their  discretion, 
or  aro  uiulcrtakeu  by  them  in  a  purely  voluntary  manner. 
With  respect  to  these  duties  they  aro  not  bound  to  under- 
take them  (I),  and  if  they  do  so  they  are  only  bound  to 
•  vcrcise  ordinary  care  (m). 

Like  other  persons,  corporations  aro  liable  for  the  negli- 
geut  use  of  their  property,  oveu  where  no  statutory  duty 
is  broken  (n). 

It  seems  that  a  corporation  is  not  answerable  for  the 
want  of  adequate  administrative  ordinances,  nor  for  the 
manner  in  which  its  ordinances  aro  carried  out  (o). 

[12Uj  Where  there  is  no  specific  duty  imi)osed  by  law 
upon  the  corporation  it  is  not  sufficient  that  it  has  not  done 
something  which  would,  if  done,  have  prevented  injury,  but 
it  must  be  shown  cither  that  it  has  directly  by  negligence 
caused  the  injury  or  permitted  it  with  notice  {2>)i  ^r  per- 
mitted another  to  cause  it  ((/).  In  fact,  as  has  been  before 
said,  a  duty  must  bo  shown  and  a  breach  of  the  duty  (r). 

The  act  which  is  being  done,  and  of  which  negligence 
is  alleged  against  the  corporation,   must   be   one  which  is 

(0  WUson  r.    Preston    (Mayor    of),  Westport,    53    Fed.     821;    Williams    v. 

I-R.5Q.   B.  218.- [Eaton  v.   Fulrburg  Grand    Rapids.    69    MIcli.    51;    City    of 

W.  Co.,  37  Neb.  546;  56  N.  W.  Ui"i>.  Jdl.)  Houston   r.  15ryan,  2  Tex.  Civ.  App.  553; 

(w)  Where  tnrnpike  trnstees  altered  22  8.  W.  Rep.  231 ;  Town  of  Krasburg  v. 

anopcn  illlch  Into  (I  closed  one  and  niaiic  Uitchlns  (.Maryland),  16  Atl.  Rep.  38u.] 

insuiUclcDt  gratings,  no  that    the  rain  (n)  See  "  Wharton  on  Negligence, '. 

waclitil  over  the  road  and  Injured  amine,  8.  251. 

U  wa«  held  that  they  were  liable  In  an  (r>)  Shearman, s.  153. 

action   of    ncgligeni^e  for    such  Injury:  (p)  Shearman,  88.  147,148. 

Whitchouse  f.   Fellowes,  30  L.  J.  C.  P.  (</)  .Shearman,  b.  147. 

305;  10  0.  B.  N.  S.  766.— [Greenwood  v.  (r)  AiUe,  p.  .3. 

An  action  by  a  private  Individual  does  not  He  for  Injuries  sustained  by 
reason  of  the  omission  on  the  part  of  a  municipal  corporation  to  t-xer- 
cl.se  discretionary  powers.  —  Dillon  on  Municipal  Corporations,  §  949; 
Beach  Pub.  Corp.  §  942. 

As  for  an  omission  to  maintain  a  suitable  fire  department,  whereby 


150      NEGLECT    OF   DUTIES   REQUIRING   ORDINARY   CARE. 

[121]  within  the  powers  or  duties  of  the  corporation ,  and  must 
not  be  ultra  vires  (5).     If  it  is  ultra  vires  it  is  a  wrong  of  a 


(8)  Poulton  r.  L.  &S.  W.  Ry.  Co.,  L.  charter),  the  corporation  is  not  liable, 

R.  2  Q.  15.  5U;  36  L.  J.   Q.  B.  294;  see  whether  its  officers   directed  the  per- 

"Brice  on    Ultra    Vires,"  p.  246.    ["To  formance   of  the  act,  or  it   was  done 

establish  the  liability  of  a  municipal  cor-  withont  any  express  directions.    Smith 

poration  for  damages  rr  suiting  from  the  i\  City  of    Rochester,  76  N.  Y.  506,  ap- 

alleged  negligence  or  want  of    skill  of  proved  in  Cummins  v.  City  of  Seymour^ 

Us  agent  or   servant  in    the  course  of  79  Ind.  491,   496;   41  Am.  Rep.  618;  see 

its  employment.  It  Is  essential  to  show  also  Hunt  v.  City   of  Boonville,  65  Mc. 

that  the  act  complained  of  was  within  620;    27   Am.    Rep.    299;   Trammell    r. 

the  scope  of   the  corporate  powers;  if  Town  of  Russellville,  34Ark.  105;  36  Am. 

outside  of  the  i)owers  of  the  corpora-  Rep.  1."] 
tion,  as    conferred    by    statute    (or   its 


injury  results.—  Wilcox  v.  City  of  Chicago,  107  HI.  226;  47  Am.  Rep.  434; 
Wheeler  v.  (  incinuati,  19  Ohio  St.  20;  Welsh  v.  Village  of  Rutland,  56  Vt. 
228;  48  Am.  Rep,  762;  Robinson  v.  City  of  Evansville,  87  Ind.  334;  44  Am. 
Rep.  770. 

For  a  failure  to  light  the  streets. —  Gaskins  v.  Atlanta,  73  Ga.  746. 
See  Davenport  v.  Hannibal,  108  Mo.  471;  18  S.  W.  Rep.  1122. 

For  a  failure  to  furnish  a  sufHcient  supply  of  water  for  the  extinguish- 
ment of  fires. — Tainter  «.  Worcester,  123  Mass.  311;  Foster  v.  Lookout 
Water  Co.,  3  Lea,  42;  Springfield  F.  &  M.  Ins.  Co.  v.  Keeseville,  26  N.  Y, 
S.  Rep.  1094;  6  Misc.  Rep.  233. 

For  injuries  caused  by  the  negligence  of  oflScers  of  the  fire  depart- 
ment in  performing  their  duties. —  Fisher  v.  Boston,  10  Mass.  87;  Hayes 
V.  Oshkosh,  33  Wis.  314;  Lawson  v.  Seattle,  6  Wash.  St.  184;  33  Pac. 
Rep.  347. 

For  the  destruction  of  property  by  mobs. —  Western  College  v.  Cleve- 
land, 12  Ohio  St,  375;  2  Dill.  Mun,  Corp.,  3d  ed.,  §  959;  Beach  Pub.  Corp. 
§  740;  Howe  u.  New  Orleans,  12  La,  Ann.  481.  See  Street  v.  New  Or- 
leans, 32  La.  Ann.  577. 

Unless  a  statute  gives  a  remedy. —  Allegheny  County  v.  Gibson,  90  Pa, 
St,  396;  35  Am.  Rep,  070. 

For  the  killing  of  a  prisoner  by  a  mob,  through  the  inefficiency  and 
negligence  of  the  police. —  Gianfortone  v.  New  Orleans,  61  Fed.  Rep,  64. 

For  the  destruction  of  private  property  to  prevent  the  spread  of  con- 
flagration,— White  V.  Charleston,  2  Hill,  (S.  C.)  571, 

For  injuries  caused  by  fireworks  discharge!  by  citizens,  in  violation 
of  an  ordinance,  though  the  council  aod  town  officers  take  an  active 
part  in  the  celebration, —  Ball  v.  Woodbine,  61  la,  83 ;  Tindley  v.  City  of 
Salem,  S.  J,  C.  Mass,,  19  C,  L.  J.  210,  and  note;  Fifield  v.  Phoenix  (Ari- 
zona) ;  36  Pac.  Rep.  916. 

For  injuries  caused  by  the  discharge  of  cannon  in  the  streets. —  Rob- 
inson V.  Greenville,  42  Ohio  St.  625;  Borough  of  Norristown  v.  Fitzpat- 


ULTKA    VIUES.  151 

[122]  cliffcivnl  nature  to  those  treated  of  in  this  work  ; 
there  being  no  right  at  all  to  do  the  act,  oven  if  done  with 

rick,  94  Pa.  St.  121;  39  Am.  Rep.  771;  Arms  v.  Knoxvllle,  32  111.  App. 
604;  O'Kourko  v.  Sioux   Fulls,  4  S.  1).  47;  54  N.  W.  Rup.  1044. 

For  the  ne-jlif^eiice  of  Its  olllcers  lu  ext-ciitiug  .sanitary  regulations  for 
prevuntlnf;;  the  spread  of  contanious  diseases.  —  Oss  v.  City  of  Lansing, 
36  la.  4'Jj;  Brown  v.  Inhabitants  of  Vin  dhaven,  05  Me.  402. 

F«)r  failing  to  pass  an  ordinance  probibitint;  swine  from  running  at 
largo.  —  Kelly  t7.  Milwaukee,  18  Wis.  83. 

Or  to  execute  such  ordinance.  —  LevytJ.  New  York,  1  Sandf.  465;  Davis 
r.  Mont;;oraery,  61  Ala.  139. 

Where  a  city  council  passed  an  ordinance  forbidding  the  running  at 
lan-e  of  cattle  in  its  streets,  and  subsequently  suspended  its  operation 
indetlnitely  on  the  ground,  among  others,  that  the  growth  of  weeds  and 
grass  was  too  luxuriant  for  comfort,  health  and  good  appearance,  one 
who  was  gored  by  a  cow  running  at  large  in  the  streets  was  held  to  have 
DO  cause  of  action  against  the  city,  though  the  owner  paid  a  municipal 
tax  on  the  cow.  —  Rivers  v.  City  of  Augusta,  05  Ga.  370;  38  Am.  Rep.  787. 

A  municipal  corporation  is  not  liable  for  the  negligence  of  its  servants 
or  agents  when  their  acts  are  not  within  the  scope  of  its  corporate  powers. 

Where  a  city  council  ordered  a  Are  department  to  take  part  in  a 
parade,  and  the  hose  cart  while  parading  the  streets  ran  over  and  Injured 
a  person,  the  city  was  held  not  liable  as  the  council  had  no  authority  to 
call  out  the  Are  department  for  that  purpose.  —  Smith  v.  Rochester,  70 
N.  Y.  500;  Cummins  v.  City  of  Seymour,  79  Ind.  491.  But  the  plea  of 
ultra  vires  can  not  be  set  up  by  a  private  corporatioQ  to  escape  liability 
for  torts. 

And  where  a  city  built  a  bridge  under  a  la»v  which  was  declared  un- 
constitutional it  was  held  not  liable  for  negligence  in  its  construction.  — 
Mayor  r.  Cunllffe,  2  N.  Y.  105;  Board  v.  Deprez,  87  Ind.  509. 

A  city  was  not  liable  for  injuries  caused  by  the  cutting  of  a  ditch  on 
the  outside. of  the  city  limits.  —  Loyd  v.  Columbus,  90  Ga.  20;  15  S.  E. 
Uep. 818. 

in  New  York,  Lake  Erie  and  Western  Railway  Co.  v.  Ilaring,  New 
Jersey  Court  of  Errors  and  Appeals,  (47  N.  J.  L.  137),  it  was  held  that 
where  the  plaintifE  was  injured  by  the  mismanagement  of  a  street  horse 
car,  the  defendant's  contention  that  as  the  corporation  had  no  franchise 
it  could  not  be  liable  to  the  action  was  untenable.  The  court  said: 
"The  ground  assigned  was  that  the  plaintiff  in  error  could  not  legally 
audertake  the  employment  in  question,  not  having  been  vested  with  the 
requisite  f-anchise,  and  that  consequently  it  was  not,  in  its  corporate 
capacity,  liable  for  any.  of  the  consequences  of  such  employment.  But 
the  doctrine  of  ultra  vires  does  not  apply  to  torts  of  this  nature.  It 
would  indeeil  be  an  anomalous  result  in  legal  science  if  a  corporation 
should  be  permitted  to  set  up  that  inasmuch  as  a  branch  of  the  business 


152      NEGLECT   OF   DUTIES   REQUIRING    ORDINARY   CARE. 

[123]  great  care,  the  rights  of  the  parties  are  not  equal, 
and  no  question  of  negligence  arises. 

prosecuted  by  it  was  wrongful,  therefore  all  the  special  wrongs  done  to 
individuals  in  the  course  of  it  were  remediless.  But  in  such  situations 
corporate  bodies,  like  individuals,  cannot  take  advantage  of  their  own 
wrong  by  way  of  defense.  If  corporations  are  not  to  be  held  responsible 
for  injuries  to  persons  done  in  the  transaction  of  a  series  of  wrongful 
acts,  such  an  immunity  would  have  a  wide  scope.  All  wrongs  done  by 
such  bodies  are,  in  a  sense,  ultra  vires,  and  if  the  want  of  a  franchise  to 
do  the  tortious  act  be  a  defense,  then  corporations  have  a  dispensation 
from  liability  for  these  acts  peculiar  to  themselves.  There  does  not 
appear  to  have  been  much  discussion  of  this  subject,  but  a  case  decided 
by  the  Supreme  Court  of  Tennessee  is  directly  on  the  point.  The  pre- 
cedent referred  to  is  reported  in  53  Tenn.  634,  and  is  entitled  Hutchison 
V.  Western  and  Atlantic  R.  Co.  It  was  an  action  against  a  corporation 
for  damages  occasioned  by  the  negligence  of  its  employes.  It  appeared 
that  •  the  railroad  company  was  without  authority  running  a  line  of 
steamers,  and  the  plaintiff  had  been  hurt  by  the  mismanagement  of  one 
of  them.  The  defense  of  ultra  vires  was  interposed  in  that  case,  as  in  the 
present,  but  it  was  rejected  on  the  ground  that  such  doctrine  had  no 
application  to  torts  of  that  character.  This  exception  cannot  prevail." 
See  Beach  Pub.  Corp.  §  592. 

And  though  the  act  is  within  the  corporate  powers  if  it  is  not  within  the 
scope  of  the  officers'  or  agents'  employment,  the  corporation  will  not  be 
liable.  The  corporation  is  accordingly  not  responsible  for  the  negligence 
of  a  city  engineer  or  surveyor  in  performing  work  for  private  parties 
(Alcorn  v.  Philadelphia,  ii  Pa.  St.  348)  ;  for  the  torts  of  its  police  (Mc- 
Elroy  V.  Albany,  65  Ga.  387;  38  Am.  Rep.  791;  Harman  v.  Lynchburg,  33 
Gratt.  37) ;  or  other  officers  though  done  colore  offlcii  unless  authorized 
or.ratifled  by  the  corporation. —  Hunt  v.  City  of  Boonville,  65  Mo.  620; 
27  Am.  Rep.  299;  Mayor  v.  Musgrave,  48  Md.  272;  30  Am.  Rep.  458; 
Thayer  v.  Boston,  19  Pick.  511;  Wallace  v.  City  Menasha,  48  Wis.  79; 
33  Am.  Rep.  804;  Lee  v.  Sandy  Hill,  40  N.  Y.  442;  City  of  Kansas  City  v. 
Leman,  57  Fed.  Rep.  905;  6  C.  C.  H.  627. 

"  But  if  the  duty  to  be  performed  is  for  the  private  advantage  of  the 
city,  in  which  the  State  has  no  interest,  then  the  city  will  be  liable  for  the 
wrongful  or  negligent  acts  of  its  agents,  although  it  may  not  have  entire 
control  of  the  officers  (Bailey  v.  Mayer,  3  Hill,  531),  as  in  laying  gas 
pipes  (Scott  V.  Mayor,  1  H.  &  N.  59),  or  in  laying  water  pipes  (Stoddard 
V.  Winchester,  157  Mass.  567;  32  N.  E.  Rep.  948),  or  keeping  a  wharf  in 
good  condition  of  which  it  has  possession."  —  See  article  on  Powers  of 
Municipal  Corporations,  22  C.  L.  J.  318;  Pittsburgh  v.  Grier,  22  Pa.  St. 
54;  Fennimore  v.  New  Orleans,  20  La.  Ann.  124;  Allison  v.  Richmond,  61 
Mo.  App.  133.    Contra,  Goddard  v.  Harp  well,  84  Me.  499;  24  Atl.  Rep.  958. 

So  when  it  derives  a  profit  or  benefit  from  its  property  or  franchise  it 


MASTER  AND    SERVANT.  153 

A  corporution,  liko  u  private  person,  can  bo  affected  with 
knowleilj^o  of  the  dangerous  or  dcfectivo  state  of  things 
under  their  control  (t). 


Section  VI. 

ITefjlect  of  Duties  by  Masters. 
(1 .)  Breach  of  Duty  to  tSer-vanis, 
(2.)  Jitrarh  of  Duty  to  Others. 
{3.)  J'JiiijAoyers'  Liability  Act. 

It  need  scarcely  bo  said  that  whether  the  nep^lect  of  duty 
is  that  of  a  master  toward  a  servant,  or  towards  others 
through  his  servants,  or  of  servants  towards  others  in  the 
same  emplo3'ment,  it  is  important  to  consider  whether  the 
parties  really  occu])y  the  relations  of  master  and  servant  or 
some  other  relations,  such  as  those  of  employer  and  con- 
tractor, bailor  and  bailee,  etc.  {ii).     A  principal  is  respon- 

(0  Penballow  r.  Mersey  Docks,  30  L.  King  v.  Spurr,  s  Q.  D.  D.  104  (proprietor 

J.   Ex.  32y,  Kx.  Ch.  per  Blackburn,  J. ;  of  cab  and  driver  — bailor  ami  bailee); 

•«e«.  r.  on  appeal,  L.  R.  1   II.  L.  O.'t;  35  and  sec  cases  collected  In  "  Macdonncll 

L.  J.  Kx.'iiJ;  Stiles  I'.  Cardiff  Steam  Nav.  on  Master  and  Servant,"  p.  Km;  Steel  r. 

Co.,  33  L.  J.  Q    15.  310.  Lester,  47  L.  J.  4:i  (whip-owner  and  cap- 

(u)  See  Fowler  r.  Lock, 41  L.J.  C.  P.  tain,   fornuT  retaining   share — master 

»;  L.  U.  7  C.  P.  272  (bailor  and  bailee) ;  and  servant) ;  Frascr  v.  Marsh,  13  Kast, 

VenabloBf.  Smlth,46  L.  J.  <i.  !?.  470;  L.  238    (not    retaining   share;    demise    of 

K.  2  Q.  B.  D.  279  (proprietor  and  driver  ship— not   master   and    servant).    See 

of  conveyance  —  master  and  .servant);  also  infra. 

may  become  liable  for  the  wrongful  acts  of  its  employes. —  Hand  v. 
Hrookllue,  12G  Mass.  324;  Toledo  v.  Cone,  41  Ohio  St.  149;  Oliver  v. 
Worcester,  102  Mass.  48'J ;  Bailey  v.  Mayor,  etc.,  N.  Y.,  3  Hill,  5:U. 

As,  for  example,  where  a  laborer  was  injured  by  the  uep;lis;ence  of  the 
•operintendent  of  a  cemetery  owned  by  a  city,  and  from  which  an 
emolument  was  derived,  the  city  was  held  liable.  — Toledo  v.  Cone,  supra. 

And  a  town  operating  a  farm  for  the  support  of  its  poor  was  held 
liable  for  nigligeully  permitting  a  ram  to  run  at  large  whereby  a  citizen 
was  injured.  —  Moulton  tx  Scarboro,  71  Me.  207. 

In  another  case,  a  town  was  held  liable  for  the  negligence  of  Its  serv- 
vants  in  performing  work  on  a  county  Insane  asylum.  —  Ilanna  v.  St. 
Louis  Co.,  62  Mo.  313. 


154      NEGLECT   OF   DUTIES    REQUIRIXG   ORDINARY    CARE. 

[124]  siblefor  the  acts  of  his  agent  done  within  the  scope 
of  his  authority  upon  the  general  principle  qui  facit  per 
alinm  facit  per  se.  As  soon  as  it  is  shown  that  the  person 
doing  the  act  complained  of  was  an  agent,  and  was  doing 
the  act  in  pursuance  of  the  authority  of  another,  that  other 
may  be  sued  for  the  damages  occasioned  by  the  negligent 
act  of  the  agent.  The  servant  is  an  agent  of  his  master, 
who  is  his  principal ;  and  the  difference  between  the  rela- 
tion of  master  and  servant  and  that  of  ordinary  principal 
and  agent  is  as  to  the  extent  of  the  authority  and  the 
nature  of  the  authority. 


Section  VI. —  Sub-section  I. 

(1.)  Breach  of  Duty  to  Servants. 

To  make  a  master  liable  for  negligence  towards  his  ser- 
vant there  must  ( in  the  absence  of  any  special  contract  or 
enactment  making  the  master  liable)  be  either  personal 
negligence  upon  his  part  (x)  or  negligence  by  his  repre- 
sentative {y)  or  colleague  or  partner  (2;),  except  where  the 
Employers'  Liability  Act  applies,  which  will  be  considered 
presently.  He  may,  however,  be  guilty  of  personal  negli- 
gence not  only  in  relation  to  the  act  itself  which  causes 
the  injury,  but  he  may  be  less  directly,  though  sufficiently 
connected  with  the  injury  by  some  previous  negligence  of 
his  own,  as  by  negligently  hiring  incompetent  servants,  or 
not  providing  proper  material  for  the  work  which  his  ser- 
vants have  to  perform.     Thus,  he  will  be  held  liable  to  an 

(,t)  Ormond  v.   HoUand   E.  B.  &  E.  (j/)  Wilson  v.  Merry,  L.  R.  1  H.  L.  8c 

102 ;  Brydon  v.  Stewart,  2  Macq.  H.  L.  30 ;  326 ;  Murphy  v.  Smith,  19  C.  B.  N.  S.  361. 

lioberts  v.  Smith,  2    H.  &  N.  212;  Ash-  (2)  Mellors  v.  Sbaw,   30  L.  J.  Q.  B, 

worth  r.  Stan wix,  1  B.  &  S.  437;  Brown  333;  Ashworth  v.  Stanwlx,  ib.  183   (co- 

V.  Accrlngton  Cotton  Co.,  3  II.  &  C.  511  owners  of  mines), 
(buildings  originally  built  In  a  negligent 
manner). 


MA.sTKi:  AM>  m:uv.vxt. 


15:> 


action  by  his  servant  for  negligence  in  selectin<^  his  serv- 
[125]  nnt8(a),  or,  it  seems,  in  retaining  tliein  after  notice 
of  their  incompetence  (b).  lie  is  bound  to  take  reasonablt? 
cure  in  the  selection  of  competent  persons  to  do  his  work  (c), 
and  to  take  reasonable  care  to  furnish  them  with  adecjuato 
materials  and  resources  for  the  work  {d),  and  to  see  that  a 


(a)  Webb  r.  Tarrant,  IS  C.  R.  IHT. 

(6)  Wcger  V.  ronnsylvania  Ky.  Co.,  55 
Pa.  SU  **•«. 

(c)  The  mere  fact  of  Incompetency  1b 
not  •afficlent,  though  It  may  be  some 
prtdencc  that  the  muster  dUl  not  take 
rvaaonabic  care  in  Bclcclinfc  the  servant; 
Me  Edwards  i-.  L.  &  B.  Uy.  Co.,  4  F.  &  F. 
8S1. 

(rf)  Per  Lord  Cnirne,  L.  C,  In  Wilson 
p.  Merry,  I..  U.  1  S.  &  D,  Ai)p.  320  (scaf- 
foldlng  in  pit  obstructing  vcntllullon) ; 
Allen  r.  Now  Gas  Co.,  L.  It.  1  Kx.  Dlv. 
SSI ;  M  L.  J.  Ex.  CCS  ((ailing  of  gates) ; 
Itrydon  r.  Stewart,  2  Macq.  II.  L.  30 
(«ri>rkmcn  coming  up  coal  pit) ;  Williams 
r.Clough,3  n.  &  N.  '2:,S  (defect  In  a  lad- 
der) ;  Mellors  r.  Shaw,  1.  B.  &  S.  437  ( shaft 
of  a  mine) ;  Brydon  r.  Stewart,  2  .Macq. 
II.  L.SK,  «u/>ra,- Ogdon  f.  Huinniens,3  F. 
A  F.  751  (defendant  employed  a  man  to 
»hore  np  an  arch) ;  held,  that  If  defend- 
ant had  reasonable  cauFC  to  believe  there 
waa  danger,  and  the  man  had  not,  de- 


fendant was  liable;  sec,  also  Britton  f. 
Gt.  Western  Cotton  Co.,  L.  K.  7  Ex.  130 
(wheel -race  In  engine  bouse  unfenccd); 
Webb  f.  Kennle,  4  F.  A  F.  608  (polo  left 
In  ground  an  unreasonable  time) ;  Con* 
oily  V.  roillon,41  Barb.  3(j<;  (a  man  know- 
ing nothing  about  scaffolding  was  put  by 
n  man  who  did  Into  a  bold  of  n  gun -boat 
to  get  rubbish  from  beneath  a  scaffold; 
held,  he  had  a  right  to  aKHume  that  due 
care  had  been  taken  about  the  scaffold) ; 
Weens  t:  Mathleson,  4  Macq.  11.  L,  21."); 
(plaintiff  at  work  under  cylinder  sus- 
pended by  defendant),  but  see  I'otts  r. 
Plunkett,  9  Ir.  C.  L.  290  (landing  erected 
by  defendant,  but  held  necessary  to 
show  knowledge) ;  Murphy  v.  Phillips, 
35  L.  T.  N.  S.  477  (chain  broke  from  wear 
and  bad  welding;  master  had  not  tested 
It;  held,  master  liable);  sec  Allen  r. 
New  Gas  Co..  L.  R.  1  Ex.  D.  251 ;  45  L.  J. 
Ex.  6(i8  (gates  unsafe  when  shut;  held, 
company  not  liable).  |  post,  \\.  157]. 


(i)  Lanlng  p.  The  New  York  Central  R.  Co.,  4!)  N.  Y.  621;  Cowles  v. 
Richmond,  etc.,  R.  Co.,  84  N.  C.  309;  37  Am.  Rep.  G20;  Tyson  v.  North 
Alabama,  etc.,  R.  Co.,  61  Ala.  554;  32  Am.  Rep.  8;  Ilogan  v.  Central 
Pacific,  etc.,  R.  Co.,  49  Cal.  128;  Indiana  Manuf.  Co.  v.  Melilcan,  87  Ind. 
87;  Satterly  r.  Morj;an,  35  La.  Ann.  llCC;  Poirier  v.  Carroll,  35  La. 
Ann.  699;  Kean  v.  Detroit  C.  &  B.  Rolling  Mills,  G8  Mich.  277;  33  N.  W. 
Rep.  395;  Hott  r.  Nay,  144  Mass.  108;  ION.  E.  Rep.  807;  East  Line  & 
Red  River  R.  Co.  v.  Scott,  71  Tex.  703;  10  S.  W.  Rep.  298;  Zumwalt  v. 
Chicago  &  A.  R.  Co.,  35  Mo.  App.  G61 ;  Melville  v.  Missouri  River,  etc., 
R.  Co.,  4H  Fed.  Rep.  820;  Haworth  v.  Seevers  Mfg.  Co.,  87  la.  7G5;  51  N. 
W.  Rep.  t;8;  Anderson  v.  New  York  &  T.  S.  S.  Co.,  47  Fed.  Rep.  38;  Lee 
r.  Michigan  Cent.  R.  Co.,  87  Mich.  674;  49  N.  W.  Rep.  909;  Smillie  v.  St. 
Bernard  Dol'ar  Store,  47  Mo.  App.  402;  Sutton  v.  New  York,  etc.,  R.  Co., 
•'.6  Hun.  032;  21  N.  Y.  S.  Rep.  312;  Galveston  R.  &  T.  Co.  v.  Barkett,  2 
Tex.  Civ.  App.  308;  21  S.  W.  Rep.  958;  Cosgrove  v.  Pitman,  103  Cal.  208; 
37Pac.  Rrp.  232;  Il.in.sell  v.  Jan.sen,  40  111.  App.  335;  Campbell  &  Zell 
Co.  r.  Roediger,  78  Md.  601 ;  28  Atl.  Rep.  901 ;  Missouri  Pac.  Ry.  Co.  v. 


156      NEGLECT   OF   DUTIES   REQUIRING  ORDINARY    CARE. 

[126]  sufficient  number  are  employed  where  it  is  dangerous 
to  leave  the  work  to  a  few  only  (e).     This  is  not  only  a 

(c)  Saxton  v.  Hawksworth,  26  L.  T.      ever,  to   dictate    how  many  servants  a 

951 ;  Skipp  v.  Eastern  Counties  Ky.  Co.,      railway  company  ought  to  keep.     \poa, 

Exch.  223.    It  Is  not  for  a  jury,  how-  p.  153], 

Patton  CTex.  Civ.  App.),  25  S.  W.  Rep.  339;  Core  v.  Ohio  River  B. 
Co.,  38  W.  Va.  456;  18  S.  E.  Rep.  596;  Lebbering  v.  Struthers,  157  Pa. 
St.  312 ;  27  Atl.  Rep.  720 ;  53  W.  N.  C.  99 ;  Galveston,  H.  &  S.  A.  Ry.  Co.  v. 
Davis,  4  Tex.  Civ.  App.  468;  23  S.  "W.  Rep.  301;  Mulvaney  v.  Brooklyn 
City  R.  Co.,  21  N.  Y.  S.  Rep.  427;  1  Misc.  Rep.  425.  But  see  Gulf,  C  & 
S.  F.  Ry.  Co.  V.  Schwabble,  1  Tex.  Civ.  App.  573;  21  S.  W.  Rep.  706; 
Brown  v.  Southern  Pac.  R.  Co.,  7  Utah,  288 ;  26  Pac.  Rep.  679. 

(6)  Shanny  v.  Androscoggin  Mills,  66  Me.  418;  Michigan,  etc.,  R.  Co, 
V.  Dolan,  32  Mich.  510;  Chapman  v.  Erie  Ry.  Co.,  55  N.  Y.  579;  Poirierw. 
Carroll,  35  La.  Ann.  699;  East  Tennessee,  etc.,  R.  Co.  v.  Gurley,  12  Lea, 
46;  Slater  v.  Chapman,  67  Mich.  523;  35  N.  W.  Rep.  106;  O'Hare  t.  Chi- 
cago &  A.  R.  Co.,  95  Mo.  662;  9  S.  W.  Rep.  23;  Chesapeake,  O.  &  S.  W. 
R.  Co.  X).  McMannon  (Ky.),  8  S.  W.  Rep.  18:  Bossont  v.  Rome,  etc.,  R. 
Co.,  10  N.  Y.  S.  Rep.  602;  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Stupak  (Ind.), 
23  N.  E.  Rep.  246;  Hobbs  v.  Atlantic  &  N.  C.  Ry.  Co.,  107  N.  C.  1;  12  S. 
E.  Rep.  124;  Louisville  &  N.  R.  Co.  v.  Davis,  91  Ala.  487;  8  So.  Rep.  552; 
Wust  V.  Erie  City  Iron  Works,  149  Pa.  St.  263;  24  Atl.  Rep.  291;  Galves- 
ton, H.  &  S.  A.  Ry.  Co.  «.  Arispe,  81  Tex.  517;  17  S.  W.  Rep.  47;  Cameron 
V.  New  York  Cent.  &  H.  R.  Co.,  77  Hun,  519;  28  N.  Y.  S.  Rep,  898;  Mul- 
hern  v.  Lehigh  Val.  Coal  Co.,  161  Pa.  St.  270;  28  Atl.  Rep.  1087;  Bonner 
V.  Whitcomb,  80  Tex.  178;  15  S.  W.  Rep.  899;  Melville  v.  Missouri  River, 
etc.,  R.  Co.,  48  Fed.  Rep.  820;  Lee  v.  Michigan  Cent.  R.  Co.,  87  Mich. 
574;  49  N.  W.  Rep.  909;  Spencer  v.  Ohio  &  M.  Ry.  Co.,  130  Ind.  181;  29 
N.  E.  Rep.  915;  Williams  v.  Missouri  Pac.  Ry.  Co.,  109  Mo.  475;  18  S.  W. 
Rep.  1089;  Hagins  xt.  Cape  Fear  &  Y.  V.  Ry.  Co.,  106  N.  C.  537;  11  S.  E. 
Rep.  590. 

In  Tex.  Pac.  Ry.  Co.  v.  Harrington,  62  Tex.  597,  the  fact  that  one  waa 
injured  by  a  locomotive  operated  by  an  engineer  who  was  near-sighted, 
was  held  not  to  establish  negligence  on  the  part  of  the  company  in 
retaining  him  in  his  employment.  See  Englehardt  v.  Delaware,  L.  &  W. 
R.  Co.,  78  Hun,  588;  29  N.  Y.  S.  Rep.  425. 

(c)  Columbus,  etc.,  R.  Co.  v.  Troesch,  68  111.  545;  18  Am.  Rep,  678; 
Moss  7).  Pacific,  etc.,  R.  Co.,  49  Mo.  167;  8  Am.  Rep.  126;  Blake  v.  Maine, 
etc.,  R.  Co.,  70  Me.  60;  35  Am.  Rep.  297;  Smoot  v.  Mobile,  etc.,  R.  Co., 
67  Ala.  13;  Haley  v.  Western  Transit  Co.,  76  Wis,  344;  45  N.  W.  Rep.' 
16;  Hinckley  u.  Horazdowsky,  133  111.  359;  24  N.  E.  Rep.  421;  Pilkenton 
V.  Gulf,  etc.,  Ry.  Co.,  70  Tex.  226;  7  S.  W.  Rep.  805;  Oakland  City  A.  & 
I.  Soc.  w.  Bingham,  4  Ind.  App.  545;  31  N.  E.  Rep.  383;  Fines  v.  Wool- 
folk,  73  Hun,  649;  26  N.  Y.  S.  Rep.  181;  Evansville  &  T.  H.  R.  Co.  v. 


MA8TEK   AND   8EHVANT.  157 

duty  [1-7]  which  tlie  roaster  owes  to  other  SGrvunta  in  his 
oiDjiloy,  I)UL  ulso  to  third  i)iirtie3,  see  mpra.  Ho  does  not, 
howeviT,  warrant  the  competency  of  his  nervants  (  f). 

(/)  PtT  Oftlrns,  U.  C,  In    Wilson  f.  Morry,  »i</>r«,  rllnifc  Tarrant  v.  Webb,  i'i  I^ 

J.  o.r.  sua.  [  j>o$t,  p.  issij. 

OaytOQ,  116  Ind,  460;  17  N.  E.  Hep.  101;  Mexican  Nat.  K.  Co.  v.  Mua- 
netto,  7  Tex.  Civ.  App.  KJ9;  24  S.  W.  liep.  520;  Everson  v.  lioUliison, 
(Pa.),  8  Atl.  liep.  l'J4;  CatUu  «.  Michigan  Cent.  K.  Co.,  6C  Mich.  358;  38 
N.  W.  Rep.  615;  Texas  &  N.  O.  R.  Co.  v.  Berry  (Tex.),  6  S.  W.  liep.  817. 
(d)  Hough  p.  Railway  Co.,  100  U.  S.  213;  llolden  v.  Fltchburg,  etc.,  R. 
Co.,  12a  Mass.  2G>S;  Little  Roci£, etc.,  R.  Co.t?.  nufify,35  Arlt.  G02;  Vosburgh 
V.  Lake  Shore,  etc.,  li.  Co.,  94  N.  Y.  374;  40  Am.  Rep.  148;  Tieruey  t?. 
Minneapolis,  etc.,  R.  Co.,  78  Minn.  311;  24  Am.  Law  lieg.  (JG'J  anil  note; 
Behm  V.  Armorer,  58  Wis.  1;  Slela  v.  Ilanulbal,  etc.,  R.  Co.,  82  Mo. 
430;  Cone  r.  Delaware,  etc.,  R.  Co.,  81  N.  Y.  206;  37  Am.  Rep.  491; 
Conver  v.  Pioneer  F.  P.  C.  Co.,  29  Fed.  Rep.  629;  Steen  v.  St.  Puul  &  1). 

B.  Co.,  37  Minn.  310;  34  N.  W.  Rep.  113;  Marshall  v.  Widdicomb  Furn. 
Co..  67  Mich.  167;  34  N.  W.  Rep.  541;  Rice  v.  King  Phillip  Mills,  144 
MaM.  229;  11  N.  E.  Rep.  101;  Atchison,  T.  &  S.  F.  R.  Co.  u.  McKee,  37 
Kan.  692;  15  Pac.  Rep.  484;  The  Neptuno,  30  Fed.  Rt^p.  925;  The  Truro, 
31  Fed.  Rep.  lo8;  Norfolk  &  W.  R.  Co.  v.  Jackson,  85  Va.  489;  6  S.  E. 
Bep.  220;  Richmond  &  D.  R.  Co.  v.  Morment,  84  Va.  167;  4  S.  E.  Rep. 
211;  Parsons  v.  Missouri  Pac.  Ry.  Co.,  94  Mo.  286;  6  S.  W.  Rep.  464; 
Uouston  &.  T.  C.  Ry.  Co.  v.  Lowe  (Texas),  11  S.  W.  Rep.  1065; 
Otlea  r.  Cowles  E.  S.  &  A.  Co.,  7  N.  Y.  S.  Rep.  251;  Myers  v.  Hudson 
Iron  Co.,  150  Mass.  125;  22  N.  E.  Rep.  631;  Nichols  v.  Bush  &  Deuslow 
MfR.  Co.,  63  Hun,  137;  6  N.  Y.  S.  Rep.  601 ;  Henderson  v.  Minnesota  & 
N.  W.  R.  Co.,  39  Minn.  523;  41  N.  W.  Rep.  104;  Coleman  v.  Wilmington, 

C.  k  R.  Co.,  25  S.  C.  446;  Washington  &  G.  R.  Co.  v.  McDade,  135  U.  S. 
654;  10  8.  Ct.  Rep.  1044;  Chicago  &  E.  L  Ry.  Co.  v.  Hines,  132  HI.  161; 
28  N.  E.  Kep.  1021;  Burns  v.  Ocean  S.  S.  Co.,  84  Ga.  709,  11  S.  E.  Rep. 
498:  Morton  v.  Detroit,  B.  C.  &  A.  R.  Co.,  81  Mich.  423;  46  N.  W.  Rep. 
Ill;  Golus  C.Chicago,  etc.,Ry.  Co. ,37  Mo.  App.  221;  Goff  w.  Toledo,  etc., 
R.  Co.,  28  111.  App.  529;  Young  v.  New  Jersey  &  N.  Y.  Ry.  Co.,  46  Fed. 
liep.  160;  Ehlridge  v.  Atias  S.  S.  Co.,  58  Huu,  96;  11  N.  Y.  S.  liep.  468; 
SL  Louis,  I.  M.  &  S.  liy.  Co.  v.  Davis,  54  Ark.  389;  15  S.  W.  Rep.  805;  Fahy 
V.  Rome,  W.  &  O.  R.  Co.,  59  Hun,  619;  13  N.  Y.  S.  Rep.  24;  Bomar  t). 
Louisiana,  N.  &  S.  R.  Co.,  42  La.  Ann.,  983,  1206;  8  So.  Rep.  478;  9  So. 
Rep.  244;  Denver,  T.  &  G.  R.  Co.  v.  Simpson,  16  Colo.  65;  20  Pac.  Rep. 
339;  Taylor  v.  Missouri  Pac  Ry.  Co.  (Missouri),  16  S.  W.  Rep.  206; 
Davidson  p.  Southern  Pac.  Co.,  44  Fetl.  Rep.  476;  Winter  v.  Union  Pac. 
R.  Co.,  3  Utah,  600;  24  Pac.  Rep.  911 ;  Ohio  &  M.  Ry.  Co.  v.  Pearry,  128 
Ind.  197;  27  N.  E.  Rep.  479;  Higgins  V.  Missouri  Pac.  Ry.  Co.,  43  .Mo. 
App.  647;  Fugler  v.  Bothe,  43  Mo.  App.  44;  Ciuclunati,  L,  St.  L.  &  C. 


158      NEGLECT   OF    DUTIES    REQUIRING    ORDINARY    CARE. 

[128  J  If  the  master  has  given  orders  to  the  servant  such 
as  would,  if  obeyed,  prevent  any  harm  arising  from  the 

Ry.  Co.  V.  Roesch,  126  Ind.445;  26  N.  E.  Rep.  171;  Krogstad  v.  Northera 
Pac.  Ry.  R.  Co.,  46  Minn.  18;  48  N.  W.  Rep,  409;  McClarney  v.  Chicago 
etc.,  Ry.  Co.,  80  Wis.  277;  49  N.  W.  Rep.  963;  Atchison  T.  &  S.  F.  R. 
Co.  V.  Wilson,  48  Fed.  Rep.  57;  4  U.  S.  App.  25;  1  C.  C.  H.  25;  Darling 
V.  New  York,  etc.,  R.  Co.,  17  R.  I.  708;  24  Atl.  Rep.  462;  Texas  &  P.  By. 
Co.  V.  Huffman,  83  Tex.  286 ;  18  S.  W.  Rep.  741 ;  Bennett  v.  Northern  Pac. 
R.  Co.,  2N.  D.  112;  49  N.  W.  Rep.  408;  Barnett  u.  Northeastern  R.  Co.,  87 
Ga.  199;  13  S.  E.  Rep.  646;  Jacques  v.  Great  Falls  Mfg.  Co.,  (N.  II.), 
22  Atl.  Rep.  552;  Smith  v.  Baker  (1891),  App.  Cas.  325;  Gulf,  C.  &  S. 
F.  Ry.  Co.  V.  Wells,  81  Tex.  685;  17  S.  W.  Rep.  511;  Mackey  v.  Balti- 
more &  P.  R.  Co.,  19  D.  C.  282;  Texas  &  P.  Ry.  Co.  v.  White,  82  Tex. 
543;  18  S.  W.  Rep.  478;  Chicago,  St.  L.  &  P.  R.  Co.  v.  Fry  (Ind,),  28  N. 
E.  Rep.  989;  Sweat  v.  Boston  &  A.  R.  Co.,  156  Mass.  284;  31  N.  E.  Rep. 
296;  Mooney  v.  Connecticut  R.  L.  Co.,  154  Mass.  407;  28  N.  E.  Rep. 
352;  Texas  Pac.  Ry.  Co.  v.  Crow,  3  Tex.  Civ.  App.  266;  22  S.  W.Rep. 
928;  Campbell u.  Walker,  (Tex.  Civ.  App.),  22  S.  W.  Rep.  823;  Romona 
Oolitic  Stone  Co.  v.  Johnson,  6  Ind.  App.  550;  33  N.  E.  Rep.  1000;  Gor- 
ham  V.  Kansas  City  &  S.  Ry.  Co.,  113  Mo.  408;  20  S.  W.  Rep.  1060; 
Northern  Pac.  R.  Co.  v.  Charless,  51  Fed.  Rep.  562;  7  U.  S.  App.  359;  2 
C.  C.  A.  380;  Blondin  v.  Oolite  Quarry  Co.,  (Indiana),  37  N.  E.  Rep. 
812;  Gardner  ?7.  Michigan  Cent.  R.  Co.,  150  U.  S.  349;  14  S.  Ct.  Rep.  140; 
Northwestern  Fuel  Co.  v.  Danielson,  57  Fed.  Rep.  915;  6  C.  C.  A.  636; 
Burdict  v.  Missouri  Pac.  Ry.  Co.,  123  Mo.  221 ;  27  S.  W.  Rep.  453;  Texas 
&P.  Ry.  Co.  «.  Nix.  (Tex,  Civ.  App.),  23  S.  W.  Rep.  328;  Cleveland,  C,  C. 
&  St.  L.  Ry.  Co.  V.  Brown,  56  Fed.  Rep.  804;  6  C.  C.  A.  142. 

But  this  rule  must  depend  upon  the  circumstances  of  the  case,  includ- 
ing the  nature  of  the  employment.  —  Robinson  v.  George  F.  Blake  Mfg. 
Co.,  143  Mass.  528;  10  N.  E.  Rep.  314;  Carroll  v.  Williston,  44  Minn. 
287;  46  N.  W.  Rep.  352. 

The  master  is  not  bound  to  furnish  the  best  known  or  conceivable 
appliances.  He  is  simply  required  to  furnish  such  as  are  reasonably  safe 
and  suitable,  such  as  a  prudent  man  would  furnish  if  his  own  life  were 
exposed  to  the  danger  that  would  result  from  unsuitable  or  unsafe  ap- 
pliances.—  Burke  v.  Witherbee,  98  N.  Y.  562;  Payne  v.  Reese,  100  Pa. 
St.  301;  George  H.  Ilaramoud  Co.  v.  Johnson,  38  Neb.  244;  56  U.  W. 
Rep.  967;  Peoria,  D.  &  E.  Ry.  Co.  v.  Hardwick,  48  111.  App.  562;  Illinois 
River  Paper  Co.  v.  Albert,  49  III.  App,  363;  St.  Louis  Southwestern  Ry. 
Co.  u.  Jagerman,  59  Ark.  98;  26  S.  W.  Rep.  591;  Gulf,  C.  &  S.  F.  Ry.  Co. ». 
McNeill  (Tex.  Civ.  App),  25  S.  W.  Rep.  647;  Nuttt?.  Southern  Pac.  Ry. 
Co.,  25  Ore.  291 ;  35  Pac.  Rep.  653;  Gulf,  W.  T.  &  P.  Ry.  Co.  v.  Abbott, 
(Tex.  Civ.  App.),  24  S.  W.  Rep.  299;  Kansas  City  &  P.  R.  Co.  «.  Ryan, 
52  Kan.  637;  35  Pac.  Rep.  292;  Rooney  v.  Sewall  &  Day  Cordage  Co.,  161 
Mass.  15S;  36  N.  E.  Rep.  789;  Watts  v.  Hart,  7  Wash.  178;  34  Pac.  Rep. 


MA8TKU    AM)    SEKVANT.  159 

U80  [129]  ofdefectivo  miiteriuls,  he  is  not  liable  (f/), upon 
the  ground  that  the  servant  is  no  l()ni:*'r  a  servant  for  this 
purpose  when  he  is  disobeying;  positive  orders. 

(g)  Durglii    r.    Mnnson,  ;t  Allen,  i'Mi;  Smith  v.  Dowell,  3  K.  A  F.  238;  [<mtf,  \>.  IS.'i]. 


488;   Consolidated  Coal  Co.  v.  Bonner,  43   111.  App.  17;  Peoria,  D.  &, 

E.  Ry.  Co.  V.  Johns,  43  111.  83;  Frlel  v.  Cltlzeus  Ry.  Co.,  115  Mo.  603; 
22  8.  W.  Ri'p.  408;  Llnkltus  v.  Butler  Colliery,  7  Klup,  73;  Eddy  ». 
Adams  (Tex.),  18  S.  W.  Rep.  490;  Carlson  v.  Pha-iiix  Bridjje  Co.,  132 
N.  Y.  273:  30  N.  E.  Rep.  750;  International  &  G.  N.  Ry.  Co.  v.  Williams, 
82  Tex.  342;  18  S.  W.  Rep.  700;  Richmond  &  D.  R.  Co.  ».  Jones,  92 
Ala.  218;  9  So.  Rep.  27G;  Lyttle  v.  Chicago  &  W.  M.  Ry,  Co., 
84  Mich.  289;  47  N.  W.  Rep.  571;  Aiigersteiu  v.  Jones  &  Laughlins. 
139  Pa.  St.  183;  21  Atl.  Rep.  24;  27  W.  N.  C.  1G9;  Kaet  Tcnn.,  V.  &  G. 
Ry.  Co.  r.  Aiken,  89  Tenn.  245;  14  S.  W.  Rep.'  1082;  International  &  G. 
N.  R.  Co.  V.  Bell,  75  Tex.  50;  12  S.  W.  Rep.  321;  Pittsburgh  &  W.  Ry. 
Co.  V.  McCombs  CPenna-)>  ^^  Atl.  Rep.  G13;  Robertson  v.  Camel- 
son,  34  Fed.  Rep.  716;  Hannibal  &  St.  J.  R.  Co.  v.  Kanaley,  39  Kan.  1; 
17  Pac.  Rep.  324;  Lehigh  &  W.  Coal  Co.  v.  Hayes,  128  Pa.  294;  18  Atl. 
Rep.  387;  24  W.  N.  C.  659;  Atchison,  T.  &  S.  F.  R.  Co.  r.  McKee,  37 
Kan.  592;  15  Pac.  Rep.  484;  Hickey  v.  Taaffe,  105  N.  Y.  20;  12  N.  E. 
Kep.  280. 

The  defect  or  insufllciency  must  be  the  proximate  cause  of  the 
injury.— Diiigle  v.  Lawrence  Mfg.  Co.,  159  Mass.  378;  34  N.  E.  Rep. 
458;  Knox  r.  New  York,  etc.,  R.  Co.,  09  Hun,  93;  23  N.  Y.  S.  Rep.  198; 
Tuck  V.  Louisville  &  N.  R.  Co.,  98  Ala,  150;  12  So.  Rep.  1G8;  Ballzer  r. 
Chicago,  etc.,  R.  Co.,  83  Wis.  459 ;  53  N.  W.  Rep.  886;  Keenan  v.  Edison  E. 
1.  Co.,  159  Mass.  379;  34  N.  E.  Rep.  3GG;  Gordon  v.  Reynolds  Card  Mfg. 
Co.,  47  Hun,  278;  Gartside  Coal  Co.  v.  Turk,  40  111.  App.  22;  Cincinnati, 
N.  0.  &  T.  P.  Ry.  Co.  v.  Mealer,  50  Fed.  Rep.  725;  1  C.  C.  A.  033;  Kruse 
».  Chicago,  etc.,  Ry.  Co.,  82  Wis.  5G8;  52N.  W.  Rep.  755;  Burke  v.  Thom- 
Hon  Meter  Co.,  18  N.  Y.  Rep.  43G;  Carter  v.  Cotter,  88  Ga.  280;  14  S.  E. 
Kep.  47G;  Sullivan  v.  Wamsutta  Mills,   loo  Mass.  200;  29  N.  E.  Rep.  516. 

(e)  Lake  Shore,  etc.,  R.  Co.  v.  Lavalley,  3G  Ohio  St.  221;  Chicago, 
etc.,  R.  Co.  V.  Taylor,  09  111.  401 ;  18  Am.  Rep.  020;  Booth  v.  Boston, etc., 
R.  Co.,  73  N.  Y.  38;  29  Am.  Rep.  97;  Johnson  v.  Ashland  Water  Co.,  71 
Wis.  563;  37  N.  W.  Rep.  823;  Georgia  Pac.  Ry.  v.  Propst,  90  Ala.  1;  7 
So.  Rep.  636;  Reichel  v.  New  York  Cent.  &  II.  R.  Co.,  130  N.  Y.  682; 
29  N.  E.  Rep.  763;  30  N.  E.  Rep.  1151;  Southern  Pac.  Co.  v.  Lafferty,  57 
Fed.  Rep.  536;  6  C.  C.  A.  474. 

(/)  Beaulleu  v.  Portland  Co.,  48  Me.  291;  Moss  r.  PaclQc  R,  Co.,  49 
Mo.  167;  Columbus,  etc.,  R.  Co.  v.  Troesch,  08  ill.  545. 

(17)  See  Go.ss  &  Phillips  Mfg.  Co.  v.  Suelan,  35  ill.  App.  103;  Keenan  v. 
Nev?  York,  etc.,  R.  Co.,  21  N.  Y.  S.  Rep.  445;  2  Misc.  Rep.  34;  Richmond 


160   NEGLECT  OF  DUTIES  REQUIRING  ORDINARY  CARE. 

[130]  The  master  does  not  by  a  simple  hiring  contract 
with  or  guarantee  his  servants  against  all  risks  (7i),  but  he 

(7i)  Riley  v.  Barrendale,  6  H.  &  N.  employed  Incompetent  persons  to  make 

446.    Thus,  It  is  not  sufficient  to  prove  itjPotts  v.  Port  Carlisle  Dock  Co., 2  L.T. 

tiiat  a  machine  was  badly  constructed.  N.  S.  283,  [ante,  p.  156]. 
but  It  must  be  shown  that  the  master 

&  D.  R.  Co.  V.  Dickey,  90  Ga.  491;  16  S.  E.  Rep.  212;  Kaare  v.  Troy,  S. 
&  I.  Co.,  139  N.  Y,  3G9;  34  N.  E.  Rep.  901. 

la  Avilla  v.  Nash  (117  Mass.  318),  an  action  by  a  servant  to  recover 
for  a  personal  injury  caused  by  the  fall  of  an  elevator  used  in  the  master's 
business  for  hoisting  goods  and  upon  which  the  plaintiff  was  ascending 
at  the  time  of  the  injury,  there  was  evidence  that  the  defendant  had  in- 
structed his  foreman  to  warn  the  men  of  a  rule  of  the  house  againstgoing 
upon  the  elevator.  The  judge  instructed  the  jury  that  if  there  was  such 
a  rule  and  the  foreman  neglected  to  give  notice  of  it  to  the  men,  it  was  the 
fault  of  a  fellow-servant,  and  the  plaintiff  could  not  recover.  It  was  held 
that  the  instruction  was  erroneous  and  that  the  questions  whether  any 
precautions  were  required  and  whether  the  instructions  given  to  the 
foreman  were  a  sulBcient  precaution,  were  for  the  jury.  The  court  said: 
•'The  instructions  were,  in  substance,  that  directions  by  the  superintend- 
ent to  the  foreman  under  whom  the  plaintiff  worked  to  warn  the  workmen 
of  the  rule  against  going  upon  the  elevator  would  be  sufficient  in  law  to 
exonerate  the  defendants.  The  case  of  Durgin  v.  Munson,  (9  Allen,  396), 
chiefly  relied  on  to  support  this  ruling,  decided  merely  that  such  instruc- 
tions were  admissible  in  evidence  upon  the  question  whether  the  defend- 
ant had  used  due  precautions  or  was  guilty  of  negligence  in  respect  to 
the  cause  of  the  injury.  We  are  of  opinion  that  the  question  in  this 
case  should  have  been  submitted  to  the  jury  as  one  of  fact." 

Where  an  employe  is  suddenly  commanded  by  his  employer  to  do  a 
particular  act,  and  exhorted  to  diligence  therein,  he  cannot  be  required  to 
exercise  the  same  degree  of  care  in  guarding  against  accidents  as  when 
he  has  more  abundant  time  for  observation  and  reflection. —  Lee  v.  Wool- 
sey,  109  Pa.  St.  124;  43  Leg.  Intel. 

The  court  said:  "If  an  employe  is  in  haste  called  upon  to  execute 
an  order  requiring  prompt  attention,  he  is  not  to  be  presumed  neces- 
sarily to  recollect  a  defect  in  machinery,  or  a  particular  danger  con- 
nected with  his  employment,  so  as  to  avoid  it.  A  prompt  and  faithful 
employe  suddenly  called  upon  by  a  superior  to  do  a  particular  act,  can- 
not be  supposed  to  remember  at  the  moment  a  particular  danger  incident 
to  its  performance  of  which  he  had  previous  knowledge;  and  it  would  be 
most  unreasonable  to  demand  of  him  the  thought  and  care  which  might 
be  exacted  when  there  is  more  time  for  observation  and  deliberation. — 
Wharton  on  Negligence,  §  219.  Like  principle  should  be  applied  to  the 
facts  in  this  case.    When  the  plaintiff  was  hurt  he  was  working  under 


MASTER    AND    SKUVANT.  ICl 

is  bound  [l-*^!]  t'>  tiiko  reasonable  care  of  his  .scrvantH, 
to  inform  tbem  of  extraordinary  risks  (/),  and  to  make 

I    liuvii'8  V.  England,  10  Jar.  N.  S.  123J  (not  informing  of  UanKur  uf  culling 

the  cyu  aud  voice  of  his  employer,  who  was  ur{;iug  speed  and  saying 
•all  right.'  He  might  have  loulied  to  see  whetlier  tlie  plaulcs  were  re- 
moved, and  he  mi;;ht  have  taiicn  time  to  have  placed  the  jack-rafter  at 
tlic  foot  of  the  giu-pole  before  starting  the  horse;  but  is  It  reasouabio  to 
exact  such  care  of  a  laborer  when  his  employer  suddenly  comes  into  the 
place  of  a  foreman,  personally  directs  the  work,  aud  gives  emphatic 
orders  to  move  quickly?  The  care  to  be  exacted  of  the  plaintiff  Is  just 
that  which  laborers  of  ordinary  prudence  would  exercise  uuder  like  clr- 
cniostances,  and  if  the  plaintiff  did  exercise  it,  his  action  shall  not  bo 
defeated  on  the  ground  of  concurrent  negligence. 

{h)  [See  ante,  note  ft].  The  master  does  not  guarantee  his  serv- 
ants against  all  risks.— Devlin  v.  Smith,  8'J  N.  Y.  470;  42  Am.  Rep.  311; 
Ladd  p.  New  Bedford,  etc.,  R.  Co.,  119  Mass.  412;  Hard  v.  Vermont,  etc., 
R.  Co.,  82  Vt.  473.  Indianapolis,  etc.,  R.  Co.  v.  Troy,  91  III.  474;  33 
Am.  Rep.  57;  Tlie  Lizzie  Frank,  31  Fed.  Rep.  477;  The  Flowerijate,  31 
Fed.  Rtp.  762;  Washington  &  G.  R.  Co.  v.  McDade,  135  U.  S.  554;  lO 
.S.  Ct.  Rep.  1044;  Chicago,  B.  &  Q.  R.  Co.  v.  Merckes,  3(;  111.  App.  1U5; 
Davles  v.  GrlQlth,  27  Wkly.  Law  Bui.  180. 

As  to  the  liability  of  a  railroad  company  for  injuries  to  employes 
caused  by  defects  In  the  cars  of  other  companies  brought  under  its  care, 
it  has  been  held  by  some  courts  to  the  same  degree  of  diligence  In  the 
management  and  use  of  a  foreign  car  as  in  the  case  of  its  own. —  Chi- 
cago, etc.,  R.  Co.  V.  Avery,  109  111.  314;  Gottlieb  v.  N.  Y.  Cent.  R.  Co.,  N. 
Y.  CU  App.,  N.  E.  Rep.,  Dec.  18,  1885;  Reynolds  v.  Boston  &  M.  R.  Co., 
M  Vt.  66;  24  Atl.  Rep.  134;  Dewey  v.  Detriot,  etc.,  Ry.  Co.,  97  Mich. 
.S29;  52  N.  W.  Rtp.  942;  Gutridge  v.  Missouri  P.  Ry.  Co.,  94  Mo.  408;  7 
8  W.  Ri-p.  47C;  Mason  v.  Richmond  &  D.  R.  Co.,  Ill  N.  C.  482;  IG  S.  E. 
•i9.'^;  Louisville  &  N.  R.  Co.  v.  Boland,  96  Ala.  626;  11  So.  Rep.  G67; 
nialional  &  G.  N.  R.  Co.  v.  Keenan,  78  Tex.  294;   14  S.  W.  Rep.  6(18; 

fr-j,  Mackin  v.  Boston,  etc.,  R.  Co.,  135  Mass.  201 ;  Baldwin  v.  Chicago, 
He,  li.  Co.,  50  la.  680. 

I      (0  The  master  is,  of  cour8e,bound  to  inform  the  servant  of  extraordinary 

'rl«k8  (Parkhurst  w.  Johnson,  50  Mich.  70;  45  A.  M.  Rep.  28;  O'Connor  v. 

Adams,   120  Mass.   427;  Baker  v.    Allegheny   R.   Co.,  95  Pa.   St.  211; 

j  Wheeler  v.  Wason  Mfg.  Co.,  135  Mass.  204;  Smith r.  Oxford  Iron  Co.,  42 

In.  J.  Law,   467;  36    Am.    Rep.   535;  Baxter  v.    Roberts,   44  Cal.    187; 

iStralendorf  r.  Rosenthal,  30  V/is.  67.'5;  Whitew.  Nouatum  Worsted  Co., 

144  Maas.  276;    11   N.   E.  Rep.  75;  Galveston,    II.  &   S.  A.   Ry.  Co.  v. 

Garrett,  73  Tex.  262;  13  S.  W.  Rep.  62;   Southwestern  T.  &  T.   Co.  r. 

Wooghler,  56  Ark.  206;  19  S.  W.  Rep.  575;  Foster  v.  Pusey      (Delaware), 

11 


162      NEGLECT    OF   DUTIES    REQUIRING   ORDINARY    CARE. 

rules  for  safe  manage-  [132]  meut  (Jc).  The  relation 
of   master    and    servant  imports    a  contract,  and  the  law 

{k)  Vose  V.  L.  &  Ry.  Co.,  2  H.  &  N.  728  (shunting  railway  cars) ;  [post,  p.  165]. 

14:  Atl.  Eep.  545;  Glover  v.  Dwight  Mfg.  Co.,  148  Mass.  22;  18  N.  E.  Rep. 
597;  Smith  v.  Peninsular  Car  Works,  60  Mich.  501;  27  N.  W.  Rep.  662; 
Trihay  v.  Brooklyn  Lead  Min.  Co.,  4  Utah,  468;  11  Pac.  Rep,  612;  Roth 
V.  Northern  Pac.  L.  Co.,  18  Ore.  205;  22  Pac.  Rep.  842;  Missouri  Pac. 
Ry.  Co.  V.  White,  76  Tex.  102;  13  S.  W.  Rep.  65;  Stewart  t>. 
New  York,  O.  &  W.  R.  Co.,  8  N.  Y.  S.  Rep.  19;  Lafrano  v. 
New  York  &M.  V.  W.  Co.,  55  Hun,  452;  8  N.  Y.  S.  Rep.  717;  Louisville, 
N.  A.  &  C.  Ry.  Co.  V.  Graham,  124  Ind.  89;  24  N.  E.  Rep.  668;  Myhan 
V.  Louisiana  E.  L.  &P.  Co.,  41  La.  Ann.  964;  6  So.  Rep.  799;  Tullis  v. 
Hassell,  54  N.  Y.  Super.  Ct.  391;  Brennan  v.  Gordon,  118  N.  Y.  489;  23 
N.  E.  Rep.  810;  Fox  u.  Peninsular  W.  L.  &  C.  Works,  84  Mich.  676;  48 
N.  W.  Rep.  203;  Rillston  v.  Mather,  44  Fed.  Rep.  743;  Grant  w.  Union 
Pac.  Ry.  Co.,  45  Fed.  Rep.  673;  McDermott  v.  New  York,  etc.,  R.  Co., 
59  Hun,  619;  13  N.  Y.  S.  Rep.  435;  Anderson  v.  Ogden,  U.  R.  &  D.  Co., 
8  Utah,  128;  30  Pac.  Rep.  305;  Stackman  u.  Chicago  &  N.  W.  Ry.  Co., 
80  Wis.  428;  50  N.  W.  Rep.  404;  Girard  v.  St.  Louis  C.  W.  Co.,  46  Mo. 
App.  79;  Moran  v.  Eastern  Ry.  Co.,  48  Minn.  46;  50  N.  W.  Rep.  930; 
Ingerman  v.  Moore,  90Cal.  410;  27  Pac.  Rep.  306;  Ring  u.  Missouri  Pac. 
Ry.  Co.,  112  Mo.  220;  20  S.  W.  Rep.  436;  Arizona  Lumber  and  Timber 
Co.  V.  Mooney  (Ariz.),  33  Pac.  Rep.  590;  Pullman's  Palace  Car  Co. 
V.  Harkins,  55  Fed.  Rep.  932;  Leigh  v.  Omaha  St.  Ry.  Co.,  36  Neb.  131; 
54  N.  W.  Rep.  134;  Pullman's  Palace  Car  Co.  v.  Laack,  143  111.242;  32 
N.  E.  Rep.  285;  Gerrish  v.  New  Haven  Ice  Co.,  63  Conn.  9;  27  Atl.  Rep. 
235;  Deweese  v.  Meramec  I.  M.  Co.,  54  Mo.  App.  476;  Michael  v.  Roan- 
oke Mach.  Works,  90  Va.  492;  19  S.  E.  Rep.  261;  Lynch  v.  Allyn,  160 
Mass.  218;  35  N.  E.  Rep.  550;  Northwestern  Fuel  Co.  v.  Danielson,  67 
Fed.  Rep.  915;  6  C.  C.  A.  636. 

This  rule  is  more  strictly  enforced  where  the  servant  because  of 
youth  or  inexperience,  does  not  understand  the  nature  of  the  risk.— 
Dowling  V.  Allen,  74  Mo.  13;  Sullivan  v.  India  Mfg.  Co.,  113  Mass.  396; 
Reiserf;.  Williams,  51  Mo.  App.  13;  Keller  v.  Gaskill,  9  Ind.  App.  670; 
36  N.  E.  Rep.  303;  May  v.  Smith,  92  Ga.  95;  18  S.  E.  Rep.  360;  Harris 
V.  Shebeck,  151  IIL  287;  37  N.  E.  Rep.  1015;  Owens  v.  Ernst,  21  N.  Y. 
S.  Rep.  426;  1  Misc.  Rep.  388;  Tagg  u.  McGeorge,  155  Pa.  St.  368;  26 
Atl.  Rep.  671;  32  W.  N.  C.  317;  Receivers  of  International  &  G.  W.E. 
Co.  V.  Moore  (Tex.  Civ.  App.),  22  S.  W.  Rep.  272;  Texas  &  P.  Ry. 
Co.  V.  Brick,  83  Tex.  598;  20  S.  W.  Rep.  511;  Haynes  v.  Erk,  6  Ind.  App. 
332;  33  N.  E.  Rep.  637;  International  &  G.  N.  Ry.  Co.  v.  Hinzie,  82  Tex. 
623;  18  S.  W.  Rep.  681;  Reynolds  v.  Boston  &  M.  R.  Co.,  64  Vt.  66;  24 
Atl.  Rep.  134;  Chicago  Anderson  Pressed  Brick  Co.  v.  Reinneiger,  140 
m.  834;  29  N.  E.  Rep.  1106;  De  Lozier  v.  Kentucky  Lumber  Co.,  (Ky.) 


MASTER    AM)    SEKVANT.  1()3 

implies  such  niiitlors  as  those  above  [l-^-^]  stated  as  part 
of  the  c<»ntract.     The  servant  is  presumed  to    know    tho 

18  8.  W.  Rep.  451;  Emma  Cotton  Seed  Oil  Co.  t>.  Halo,   6G  Ark.  232; 

19  8.  W.  Uep.  t!00;  Niidaii  v.  Wblte  Klver  Lumber  Co.,  7G  Wis.  120; 
43  N.  W.  Itep.  1135;  Thall  v.  Carnle,  5  N.  Y.  S.  Kep.  244;  Cleveland 
Kolllng  Mill  Co.  V.  Corrlgaii,  40  Ohio  St.  283;  20  N.  E.  Kep.  4CG;  Robert- 
goo  r.  Cornelson,  34  Fed.  lUp.  71C>;  Gamble  v.  Ulne,  2  N.  Y.  S.  Rep.  778. 

But  It  Is  not  the  master's  duly  to  point  out  patent  dangers. —  Fones  v. 
Phillips,  3D  Ark.  17;  Johnson  v.  Ashland  W.  Co.,  77  Wis.  51;  45  N.  W. 
llt-p  807;  The  Atlas  Knjiine  Worlis  v.  Randall,  100  Ind.  2'M];  Brooks  ». 
Northern  I'ac.  R.  Co.,  47  Fed.  R- p.  087;  Bennett  v.  Northern  Pac.  R. 
Co.,  2  N.  I).  112;  4'.)  N.  W.  Rep.  408;  Jenninps  v.  Tacoma  Ry.  &  M.  Co., 
7Waijh.  St.  275;  34  Pac.  Rep.  937;  Rietraan  u.  Stolte,  120  lud.  314;  22 
N.  E.  Rep. 304. 

Where  a  servant  was  killed  by  the  breaking  of  a  rope  on  the  master's 
derrick  on  the  first  day  of  his  using  It  In  the  master's  work,  the  rope 
being  two  or  three  years  old,  having  been  exposed  to  the  weather  and 
being  rotten,  although  apparently  sound,  it  was  held  that  there  was  evi- 
dence of  the  master's  negligence  for  the  jury  (Baker  v.  Allegheny  R.  Co., 
95  Pa.  St.  211;  41  Am.  Rep.  G34)  ;  it  is  a  general  rule  that  the  master 
must  have  known  of  the  existence  of  the  danger  to  which  the  servant 
w»s  exposed  or  should  by  the  use  of  reasonable  care  have  known  of  it 
(Johnson  tJ.  Chesapeake  &  0.  Ry.  Co.,  3G  W.  Va.  73;  14  S.  E.  Rep.  432; 
Chicago,  St.  L.  &  P.  R.  Co.  v.  Fry,  131  Ind.  319;  28  N.  E.  Rep.  989; 
Mahoney  tj.  New  York,  etc.,  R.  Co.,  19  N.  Y.  S.  Rep.  511;  Glossen  ». 
Gehman,  147  Pa.  St.  619;  23  Atl.  Rep.  843;  30  W.  N.  C  40;  Cowan  t7. 
Chicago,  etc.,  Ry.  Co.,  80  Wis.  284;  50  N.  W.  Rep.  180;  Mensch  v.  Penn- 
sylvania R.  Co.,  150  Pa.  St.  598;  25  Atl.  Rep.  31;  30  W.  N.  C.  548;  Pt-nn- 
sylvania  Co.  v.  Congdon,  134  Ind.  22G;  33  N.  E.  Rep.  795;  Fordyce  ». 
Yarbrough,  1  Tex.  Civ.  App.  2G0;  21  S.  W.  Rep.  421;  Louisville  &  N.  R. 
Co.  V.  Shlvell,  (Ky.)  18  S.  W.  Rep.  944;  Bowers  v.  TTnion  Pac.  R. 
Co.,  4  Utah,  215;  7  Pac.  Rep.  251;  Columbia  &  P.  S.  R.  Co.  t>.  Haw- 
thorn, 3  Wash.  353;  19  Pac.  Rep.  25);  but  when  its  defective  condition 
waa  known  to  a  fellow-servant  whose  duty  was  to  replace  it  when  un- 
sonnd,  the  Injured  servant  could  not  recover  for  injuries  caused  by  its 
breaking.— Johnson  v.  Tow  Boat  Co.,  135  Mass.  209.  See  Illinois  Cent. 
R.  Co.  p.  Pirtle,  47  111.  App.  498. 

In  a  late  case  decided  by  the  Supreme  Court  of  the  United  States 
(Northern  PaclHc  R.  Co.  v.  Herbert,  Feb.  1,  188G,  33  Alb.  L.  Jour.  288), 
It  was  held  that  a  railroad  company  was  liable  for  an  Injury  .sustained  by 
reason  of  a  defective  and  worn  out  brake  which  had  been  long  in  that 
condition  to  the  knowledge  of  the  yardmaster  and  which  defect  might 
have  been  ascertained  by  inspection,  and  that  the  brakeman  having  been 
employed  but  one  day  in  the  yard  was  not  chargeable  with  contributory 
negligence  unless  the  defect  was  patent  or  he  had  been  informed  of  it. 


1G4      NEGLECT   OF   DUTIES   KEQUIRING  ORDINARY   CARE. 

nature  of  the  employment  upon  which  he  is  entering,  and 
the  ordinary  risks  which  he  will  run  (I).     He  is  not  bound 

(0  Hutchinson  v.  Y.  N.  &  B.  Ry.  Co.,  5  Ex.  352.  [post,  p.  166]. 

In  Tissue  v.  Baltimore  and  OhioRailroad  Co.,  CI  12  Pa.  St.  91 ;  33  Alb. 
Law  Jour.  284),  a  railroad  company  engaged  in  enlarging  a  certain  tun- 
nel on  its  line,  constructed  a  magazine  for  storing  dynamite  32  feet  from 
its  main  line,  and  about  168  feet  from  the  mouth  of  the  tunnel,  which 
was  furnished  with  a  stove,  and  containing  about  1,100  pounds  of 
dynamite.  An  explosion  took  place  in  this  magazine  from  some  cause 
unknown,  which  killed  a  servant  of  the  company  employed  as  a  brakemau 
and  flagman,  who  was  at  the  time  standing  near  the  track.  In  an  action 
to  recover  damages  for  his  death  it  was  held,  that  the  question  of  the 
company's  negligence  in  locating  the  magazine,  and  storing  in  it  thai 
quantity  of  dynamite,  should  properly  be  left  to  the  jury.  The  court 
said :  ♦'  The  inquiry  is  as  to  the  negligence  of  the  company  in  permitting 
so  gi'eat  a  quantity  of  dynamite  to  be  placed  in  such  a  position  that  an 
accidental  explosion  of  it  might  result  in  death  or  injury  to  its  serv- 
ants. Whilst  it  is  true  that  the  master  does  not  warrant  the  absolute 
safety  of  those  whom  he  employs  to  do  his  work,  yet,  as  we  held  in  the 
case  of  Green  and  Coates  Streert  Passenger  Ry.  Co.  v.  Bresner,  1  Out. 
103,  he  is  bound  to  take  heed  that  he  does  not  through  his  own  want  of 
care  expose  his  servant  to  unnecessary  risks  of  dangers,  either  from  the 
character  of  the  tools  with  which  he  supplies  him,  or  the  place  in  which 
he  requires  him  to  operate.  As  the  question  growing  out  of  what  is 
here  stated  is  one  of  fact,  it  can  only  be  determined  by  the  verdict  of  a 
jury.  Ought  the  company's  superintendent  to  have  known  that  in  plac- 
ing the  magazine  where  it  was  placed,  he  was  exposing  the  man  engaged 
in  operating  the  road,  as  well  as  others,  to  a  danger  to  which  they  ought 
not  to  have  been  exposed?  The  question  is  not  whether  he  did  have 
knowledge  of  the  peculiar  properties  of  the  material  which  he  was  in- 
trusted to  handle,  for  his  ignorance  in  this  particular  would  be  no  excuse 
for  the  company,  but  whether  the  agent  thus  intrusted  ought  to  have 
been  one  who  knew  that  dynamite  was,  from  its  nature,  liable  to  acci- 
dental explosion,  such  as  could  not  be  ordinarily  foreseen  or  provided 
against.  We  would  indeed  be  unwilling  to  assume  that  either  Yardley 
or  Armstrong  knew  that  he  was  subjecting  these  laboring  men  to  danger 
so  frightful.  They  may,  like  the  men  themselves,  have  entertained  the 
common  idea  that  dynamite  could  not  be  exploded  but  by  the  ordinary 
method  of  percussion.  But,  as  we  have  said,  this  ignorance,  if  igno- 
rance it  was,  will  not  excuse  the  company,  for  there  was  a  duty  resting 
upon  it  to  know,  as  far  as  it  was  possible  to  know,  the  character  of  the 
material  which  it  placed  in  the  hands  of  its  agents.  In  this  we  are  not 
to  be  understood  as  pronouncing  upon  the  chemical  characteristics  of 
dynamite,  for  about  it  we  know  little  or  nothing,  or  as  charging  negli- 


MASTER  AND  SEUVANT WAIVER  OF  COMMON-LAW  UIOIIT8.     165 

to  coutinuo  in  an  employment  in  which  ho  runs  serioiiH  risks, 
and  if  ht-  tloes,  he  must  take  things  as  he  finds  them  (m). 

(d)  WlRonoro  r.  Jaj*,  5  Kx.  54  (fall  of  scaffold,  ansotind  polo) ;  [pogt,  p.  167]. 

gence  on  tho  company  or  its  agents.  The  act  of  patting  the  mauazine 
where  it  was  may  have  been  prudent,  or  at  least  not  unreasonably  prud- 
ent,  and  the  explosion  may  have  been  the  result  of  accident  which  no 
ordinary  human  foresight  could  provide  atrainst,  hence,  one  for  which 
no  one  can  be  held  responsible.  But  however  this  may  be,  the  matter  is, 
under  all  the  evidence,  for  a  jury,  and  to  a  jury  if  must  be  referred." 

An  employe  in  an  iron  fonndry,  having  been,  without  warning  of  the 
extraordinary  danger  attending  the  act,  ordered,  with  others,  to  leave  the 
baildlng  to  which  his  accustomed  service  conllued  him,  and  to  go  over 
a  frozen  alley- way  for  a  ladle  full  of  molten  iron,  in  performance  of  wliich 
service  one  of  the  party  slipped  and  fell,  whereby  the  molten  metal,  com- 
ing into  contact  with  the  ice,  was  thrown  over  such  employe,  so  that  he 
died  In  consequence,  in  an  action  thereupon  by  the  executrix  of  such  em- 
ploye to  recover  damages,  it  was  held  that  it  would  not  be  presumed  that 
such  employe  had  a  scientiflc  knowledge  of  the  effect  of  molten  iron  being 
thrown  upon  ice,  so  as  to  charge  him  with  contributory  negligence  in  not 
having  declined  the  service,  or  removed  the  ice  preparatory  to  performing 
it.—  Smith  V.  Peninsular  Car  Works,  GO  Mich.  501 ;  27  N.  W.  Rep.  Gt;2. 

(it)  It  is  the  duty  of  the  master  also  to  make  rules  for  safe  manage- 
ment.—  Chicago,  etc.,  R.  Co.  v.  Taylor,  (i!)  111.  4G1 ;  Cooper  v.  Iowa  Central 
K.  Co.,  44  la.  134;  Lewis  v.  Seifert,  IIG  Pa.  St.  628;  11  Atl.  Rep.  514; 
Rea}?an  r.  St.  Louis,  etc.,  Ry.  Co.,  93  Mo.  348;  6  S.  W.  Rep.  371;  Mul- 
vaney  v.  Brooklyn  City  R.  Co.,  21  N.  Y.  S.  Rep.  427;  1  Mi^^c.  Rep.  425; 
Ford  p.  Lake  Shore  &  M.  S.  Ry.  Co.,  124  N.  Y.  493;  26  N.  E.  Rep. 
1101;  Berrigan  v.  New  York,  etc.,  R.  Co,  69  Ilun,  627;  14  N.  Y.  S. 
Rep.  26;  Whiltaker  v.  Delaware  &  H.  C.  Co,  126  N.  Y.  544;  27  N.  E.  Rep. 
1042;  Morgan  v.  Hudson  River  O.  &  I.  Co.,  16  N.  Y.  S.  Rep.  609;  Abel 
V.  President,  etc.,  D.  &  H.  C.  Co.,  128  N.  Y.  662;  28  N.  E.  Rep.  663; 
Shephard  v.  New  York,  etc.,  R.  Co.,  63  Hun,  634;  18  N.  Y.  S.  Rep.  665; 
Kansas  City,  Ft.  S.  &  M.  Ry.  Co.  t?.  Hammond,  58  Ark.  324;  24  S.  W. 
Rep.  723;  Warn  u.  New  York,  etc.,  Ry.  Co.,  29  N.  Y.  S.  Rep.  897.  But 
sach  rules  may  be  unnecessary  and  not  required, —  Texas  &  N.  O.  Ry. 
Co.  c.  Echols,  87  Tex.  839;  27  S.  W.  Rep.  60;  Kudik  v.  Lehigh  Val.  R. 
Co.,  78  Hun,  492;  29  N.  Y.  S.  Rep.  533;  Doing  v.  New  York,  etc.,  R.  Co., 
78  Hun,  270;  26  N.  Y.  S.  Rep.  405;  Burke  v.  Syracuse,  etc.,  R.  Co.,  69 
Hun,  21;  23  N.  Y.  S.  Rep.  458. 

Failure  to  obey  the  rules  is  negligence  on  the  part  of  the  servant,  as 
ancoupling  cars  while  In  motion  in  violation  of  a  rule  of  a  railroad 
company.  —  Lockwood  v.  Chicago,  etc.,  R.  Co.,  55  Wis.  50;  Ford  v. 
Chicago,  etc.,  Hy.  Co.  (la.),  59  N.  W.  Rep.  5. 

Omission  to  use  a  stick  in  coupling  cars  as  required  by  the  rules  of 


166      NEGLECT   OF   DUTIES    REQUIRING   ORDINARY    CARE. 

A  servant  may,  however,  by  his  conduct  waive  his  com- 
mon law  rights  as  against  his  master  by  entering  upon  the 

the  company  (Hulett  v.  St.  Louis,  etc.,  E.  Co.,  67  Mo.  239;  Richmond  & 
D.  R.  Co.  V.  Hissong,  97  Ala.  187;  13  So.  Rep.  209),  but  it  is  not  negli- 
gPDce  where  the  employe's  attention  has  not  been  called  to  the  rule. — 
Fay  V.  Minneapolis,  etc.,  R.  Co.,  30  Minn.  231.  See  Central  R.  of 
Georgia  v.  Ryals,  54  Ga.  420;  11  S.  E.  Rep.  499;  Louisville,  N.  H.  &  C. 
Ry.  Co.  V.  Berkey,  136  Ind.  181;  35  N.  E.  Rep.  3;  James  v.  Northern  Pac. 
R.  Co.,  46  Minn.  168;  48  N.  W.  Rep.  783. 

It  was  held  in  Nelson  v.  Chicago,  etc.,  R.  Co.  (60  Wis.  320),  that  a  loco- 
motive engineer  is  not  bound  at  all  hazards  to  comprehend  fully  all  the 
results  of  the  changes  in  the  running  time  of  trains  made  by  a  new  time 
table  and  is  not  necessarily  guilty  of  negligence  in  running  his  train 
contrary  to  the  rules  of  such  time  table  on  the  first  trip  after  it  takes 
effect. 

(0  Laddu.  New  Bedford,  etc.,R.  Co.,  119  Mass.  412;  20  Am.  Rep.  331; 
Murphy  v.  Boston,  etc.,  R.  Co.,  88  N.  Y.  146;  42  Am.  Rep.  240;  Pingree 
V.  Leyland,  135  Mass.  398;  G.  H.  &  S.  A.  Ry.  Co.  v.  Lempe,  59  Tex.  19; 
Pittsburg  &  L.  E.  R.  Co.  •;;.  Henley,  48  Ohio  St.  608;  29  N.  E.  Rep.  575; 
Week  y.  Fremont  Mill  Co.,  3  Wash  St.  629;  29  Pac.  Rep.  215;  Smith  w.  The 
Seraphs,  51  Fed.  Rep.  91;  Rutherford  u.  Chicago,  etc.,  Ry.  Co.  (Minn.), 
59  N.  W.  Rep.  302;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Alsdurf,  47  111.  App.  200; 
Goodridge  v.  Washington  Mills  Co.,  160  Mass.  234;  35  N.  E.  Rep.  484; 
French  v.  Hulls,  72  Hun,  442;  25  N.  Y.  S.  Rep.  188;  Texas  &  P.Ry.  Co.  v. 
Minnick,  57  Fed,  Rep.  362;  6  CCA.  387;  City  of  Lebanon  u.  McCoy, 
(Ind.  App.)  36  N.  E.  Rep.  547 ;  Gleeson  v.  Excelsior  Mfg.  Co.,  94  Mo.  201 ; 
7  S.  W.  R'p.  188;  Reinig  v.  Broadway  R.  Co.,  1  N.Y.  S.Rep.  907;  Central 
R.  R.  V.  Sims,  80  Ga.  749;  7  S.  E.  Rep.  176;  Olson  v.  St.  Paul,  etc.,  Ry. 
Co.,  38  Minn.  117;  35  N.  W.  Rep.  866;  Texas  &  N.  O.  Ry.  Co.  v.  Dillard, 
70  Tex.  62;  8  S.  W.  Rep.  113;  Smith  v.  Sellers,  40  La.  Ann.  527;  4  So.  Rep. 
333;  Foster  V.  Pusey  (Del.),  14  Atl.  Rep.  545;  Union  Pac.  Ry.  Co.  v. 
Estes,  37  Kan.  715;  16  Pac.  Rep.  131;  Pendersou  «.  Rushford,  41  Minn. 
289;  42  N.  W.  Rep.  1063;  Southwest  Va.  Imp.  Co.  v.  Andrew,  36  Va.  270; 
9  S.  E.  Rep.  1015;  Minty  v.  Union  Pac.  Ry.  Co.,  2  Idaho,  437;  21  Pac.  Rep. 
660;  Kennedy  v.  Pennsylvania  R.  Co.  (Pa.;,  17  Atl.  Rep.  7;  24  W.  N. 
C  371 ;  Illinois  Cent.  R.  Co.  v.  Neer,  26  111,  App.  356;  Griffln  v.  Ohio  &  M. 
Ry.  Co.,  124  Ind.  326;  24  N.  E.  Rep.  888;  Thorn  v.  New  York  City  Ice  Co., 
46  Hun,  497;  Rickert  v.  Stephens,  133  Pa.  St.  538;  19  Atl.  Rep.  410;  Boyle 
V.  New  York  &  N.  E.  R.  Co.,  151  Mass.  102;  23  N.  E.  Rep.  827;  Rutledge 
V.  Missouri  Pac.  Ry,  Co.,  110  Mo.  312;  19  S.  W.  Rep.  38;  Berrigan  u. 
New  York,  etc.,  R.  Co.,  131  N.  Y.  582;  30  N.  E.  Rep.  57;  Knight  v.  Cooper, 
36  W.  Va.  232;  14  S.  E.  Rep.  999;  Melville  v.  Missouri  River,  etc.,  R- 
Co.,  48  Fed.  Rep.  820;  H.  S.  Hopkins  Bridge  Co.  v.  Burnett,  85  Tex. 
16;  19  S.  W,  Rep.  886;  Coal  Creek  Min.  Co.  v.  Davis,  80  Tenn.  711;  18 
S.  W.  Rep.  387;  St.  Louis,  A.  &  T.  Ry.  Co.  v.  Lemon,  83  Tex.  143;  18  S. 


MASTER   AND   SKKVANT.  1()7 

service  upon  other  terms,  either  express  or  implied.  With 
express  contracts  this  work  has  nothing  to  do  (7t),  but  with 

(»i)  Ante,  p.  1(1;   [post.  ]>.  I7:i;. 

W.  Rep.  831 ;  Murphy  v.  American  Rubber  Co.,  169  Mass.  26G;  34  N.  E. 
Rup.  2GH;  Poliintl  v.  Chlca;jco,  etc.,  R.  Co.,  44  La.  Ann.  1003;  11  So.  Uip. 
707;  St.  Louis  Southwestern  Ry.  Co.  v.  Jagfrmiin,  o7  Ark.  98;  2C,  S.  W. 
Itep.  691;  .\n<,'lln  r.  Texas  &  V.  Ry.  Co.,  (iO  Fed.  Rep.  553;  9  C.  C.  A. 
130;  Schulz  r.  John.son,  7  Wash.  403;  35  Pac.  Rep.  130;  Gulf  C.  &  S. 
F.  Ry.  Co.  r.  Kizziah,  8G  Tex.  81 ;  23  S.  W.  Rep.  578. 

The  servant  assumes  no  risks  which  it  is  the  duty  of  the  master  to 
prevent;  as  those  of  defective  appliances. —  Chicago  &  E.  R.  Co.  v. 
Branyan,  10  Ind.  App.  670;  37  N.  E.  Rep.  190;  Ileltonville  Mfi,'.  Co.  o. 
Fields  (Ind.),  3GN.  E.  Rep.  529;  Beard  v.  Chesapeake  w.  C.  Ry.  Co., 
90  Va.  351  ;  18  S.  E.  Rep.  55!);  Duggan  v.  Third  Ave.  R.  Co.,  29  N.  Y.  S. 
Rep.  13;  9  Miss.  Rep.  158;  Conlon  ?\  Oregon,  etc.  Ry.  Co.,  23  Ore.  49'.t; 
32  Pac.  Rep.  397;  Lofrano  v.  New  York  &  M.  V.  W.  Co.,  55  Hun,  452;  8 
N.  Y.  8.  Rep.  717;  Piette  v.  Bavarian  Brewing  Co.,  91  Mich.  C05;  52  N. 
W.  Rep.  152;  Nicholds  v.  Crystal  Plate  Glass  Co.  (Mo.;,  27  8.  W.  Rep. 
616.     See  ante,  p.  155,  d. 

(m).  [See  ante,  note  m,  p.  IC5.]  As  stated  by  the  authorities 
referred  to  in  the  preceding  note  the  servant  assumes  the  ordinary 
risks  Incident  to  his  employment.  This  rule  applies  where  the  em- 
ployment is  of  a  dangerous  character,  the  only  difiference  from  ordi- 
nary cases  being  that  both  master  and  servant  are  bound  to  exercise 
a  higher  degree  of  care  for  the  latter's  protection. —  Abend  v.  Terre 
Haute,  etc.,  R.  Co.,  Ill  111.  202;  Powers  v.  N.  Y.,  Erie,  etc.,  R.  Co.,  98 
N.  Y.  274;  NXvlor  f.  Tlie  Chicago,  etc,  Rv.  Co.,  53  Wis.  GCl ;  Sweeney 
t.  Central  Pacific  R.  Co.,  57  Cal.  15;  Aldridge  t;.  ^Midland  Blast  Furnace 
Co.,  20  S.  C.  559;  Watson  v.  Kan.sas  &  T.  C  Co.,  62  Mo.  App.  SCG; 
Prentice  v.  Westville,  GG  Hun,  G34;  21  N.  Y.  S.  Rep.  820;  Price  r.  Rich- 
mond &  D.  R.  Co.,  38  S.  C.  199;  17  S.  E.  Rep.  732;  Daly  v.  Alexander 
Smith  &  Sons  Carpet  Co.,  69  Hun,  77;  23  N.  Y.  S.  Rep.  2G9;  Man- 
son  0.  Eddy,  3  Tex.  Civ.  App.  148;  22  S.  W.  Rep.  GG;  Sullivan 
r.  Fltchburg  R.  Co.,  IGl  Mass.  125;  3G  N.  E.  Rep.  751;  Beckman  v. 
Consolidated  Coal  Co.  (Li.),  57  N.  W.  Rep.  889;  Goldthwait  v.  Haver- 
bin  &  G.St.  Ry.  Co.,  IGO  Mass.  554;  3G  N.  E.  Rep.  48G;  Crowley  v. 
Appleton,  148  Mass.  98;  18  N.  E.  Rep.  G75;  Houston  ».  Culver,  88  Ga.  34; 
18  S.  E.  Rep.  953;  Town.send  v.  Langles,  41  Fed.  Rep.  919;  Neilon  v. 
Marinette  &  M.  P.  Co.,  75  Wis.  579;  44  N.  W.  Rep.  772;  Dartmouth  Spin- 
ning Co.  V.  Achard,  84  Ga.  14;  10  S.  E.  Rep.  449;  The  Mahjarah,  40  Fed. 
Rep.  784;  Ehmcke  v.  Porter,  45  Minn.  338;  47  N.  W.  Rep.  lOGG;  Davis  v. 
Baltimore&O.  R.  Co.,  152Pa.  St.  314;  25  Atl.  Rep.  498;  31  W.N.  C.  300; 
Carroll  r.  East  Tenn.,  V.  &  G.  Ry.  Co.,  82  Ga.  452;  10  S.  E.  Rep.  1(;3; 
Stephenson  v.  Duncan,  73  Wis.  404;  41  N.  W.  Rep.  337;  Drake  v.  Union 


1(J8       NEGLECT    OF    DUTIES    REQUIRING   ORDINARY    CARE. 

respect  to  services  given  under  special  circumstances  it 
should  be  stated  that  if  a  servant  enters  upon  or  continues 

Pac.  Ry.  Co.,  2  Idaho,  453;  21  Pac.  Rep.  560;  Woods  v.  St.  Paul  &  D.  R. 
Co.,  39  Minn.  435;  40  N.  W.  Rep.  510;  Smith  v.  Winona  &  St.  P.  R.  Co., 
42  Minn.  87;  43  N.  W.  Rep.  968;  Adams  v.  Iron  Cliffs  Co.,  78  Mich.  271; 
44  N.  W.  Rep.  270;. Carlson  v.  Oregon,  etc.,  Ry.  Co.,  21  Ore.  450;  28  Pac. 
Rep.  497;  Daigle  v.  Lawrence  Mfg.  Co.,  159  Mass.  378;  34  N.  E.  Rep. 
458;  Ball  v.  Detroit  L.  Co.,  73  Mich.  158;  41  N.  W.  Rep.  216. 

As  in  case  of  railroad  employes  killed  or  injured  by  low  bridges  while 
standing  upon  the  top  of  cars  and  in  the  performance  of  their  duties.— 
Wells  V.  The  B.  C.  R.  &  N.  R.  Co.  56  la.  520;  Devitt  v.  Pacific  R.  R.  Co., 
50  Mo.  302;  Baylor  v.  Delaware,  etc.,  R.  Co.,  40  N.  J.  Law,  23;  29  Am. 
Rep.  208;  Baltimore,  etc.,  R.  Co.  v.  Strickler,  51  Md.  47;  34  Am.  Rep, 
291;  Clark's  Admr.  v.  Richmond,  etc.,  R.  Co.,  78  Va.  709;  49  Am.  Rep. 
394;  Rains  v.  St.  Louis,  etc.,  R.  Co.,  71  Mo.  164;  36  Am.  Rep.  459;  Will- 
iamson V.  Newport  News,  etc.,  Co.,  34  W.  Va.  G57;  12  S.  E.  Rep.  824; 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Wright,  115  Ind.  378;  16  N.  E.  Rep.  145; 
17  N.  E.  Rep.  584;  Chesapeake  &  O.  R.  Co.  v.  Hafner,  90  Va.  621 ;  19  S. 
E.  Rep.  1C6;  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v.  Walter,  147  111.  60:  35 
N.  E.  Rep.  529,  affirming  45  111.  App.  642;  Carbine  v.  Bennington  R.  Co., 
61  Vt.  348;  17  Atl.  Rep.  491;  Ryan  v.  Long  Island  R.  Co.,  51  Hun,  607;  4 
N.  Y.  S.  Rep.  381 ;  Pennsylvania  Co.  v.  Sears,  136  Ind.  460;  34  N.  E.  Rep. 
15;  Wallace  v.  Central  Vermont  R.  Co.,  138  N.  Y.  302;  33  N.  E.  Rep. 
1069;  Louisville  &  N.  R.  Co.  v.  Hall,  91  Ala.  112;  8  So.  Rep.  371. 

And  while  there  voluntarily,  out  of  the  line  of  their  employment. — 
Pittsburg,  etc.,  R.  Co.  v.  Sentmeyer,  92  Pa.  St.  276;  37  Am.  Rep.  684. 

It  is  held  otherwise  where  the  employe  is  ignorant  of  the  dangerous 
character  of  the  structure.  —  Baltimore,  etc.,  R.  Co.  v.  Rowan,  104 
Ind.  88;  3  N.  E.  Rep.  627.  In  that  case  it  was  held  that  a  railroad 
company  is  liable  for  the  death  of  a  brakeman  by  a  low  bridge  while 
in  the  performance  of  his  duty  on  top  of  the  cars,  he  being  ignorant  of 
its  dangerous  character.  The  court  said:  "It  must  be  confessed  that 
the  position  of  appellants'  counsel,  in  regard  to  the  non-liability  of  the 
railroad  company  to  its  employe,  in  such  a  case  as  the  one  at  bar,  seems  to 
be  sustained  by  the  decisions  of  the  court  of  last  resort  in  several  of  our 
sister  States.  We  cite  some  of  these  cases  as  follows :  Baylor  v.  Dela- 
ware, etc.,  R.  Co.,  40  N.J.  L.  23;  29  Am.  Rep.  208;  Baltimore,  etc.,  B. 
Co.  V.  Strieker,  51  Md.  47;  34  Am.  Rep.  291;  Devitt  v.  Pacific  R.,  50 
Mo.  302;  Pittsburg,  etc.,  R.  Co.  v.  Sentmeyer,  92  Pa.  St.  576;  37  Am, 
Rep.  684;  Clark's  Admr.  v.  Richmond,  etc.,  R.  Co.,  78  Va.  709;  49  Am. 
Rep.  394;  Gibson  v.  Erie  Ry.  Co.,  63  N.  Y.  449;  20  Am.  Rep.  552.  In 
this  connection  we  may  properly  note  that  in  Beach  on  Contributory 
Negligence,  §  134,  in  speaking  of  these  decisions,  it  is  vigorously 
said :  '  If  the  roof  or  overstructure  of  the  bridge  is  so  low  that  it  will 
strike  a  brakeman  standing  erect  upon   the    top  of   his  train,  it  is  an 


MASTKK    AND    SERVANT.  169 

in  a  service  after  notice  or  knowledge  of  danger,  ho  must 
bo  taken  to  have  accepted  the  service  and  the  danger  too  (o). 

(o)  Frazor  r.  PennsjlTania  Uy.Co.,3S  as  tho  sorrant  wuh  awnro  of  tlio  (InnRor 

Pa.  ^t.  l'>i  (Murvaiit  awiiru  of    huliliuul  tliu  rauHter  wu8notrcH|>onBlblo,altliouKli 

neflljroco  of  fi'llow»crviinl) ;  Skipp  c.  there  \vu«  a  Bufi-r  way  of  doin^  Ihc  work 

Kaslorn  ("ountles  Ky.  Co.,  !>  Kxch.  '.''^  which  was    discarded   by   tlio    mahler's 

(had  done  wtirk  without  UHSlutancu  for  own     orders,     sed   qutrref);  .Savloii    v. 

long  Uiuo);i;rillUli»  f.  Gidlow,  3  H.  AN.  Iliiwksworlh,  20  I>.  T.  N.  S.  801  (engine 

M4 (knew  defeciM  In  machinery);  Sunlor  known  to  bo  left  unattended    revolved 

r.  Ward.  1  K.  &  K.  'i)i!>  (knew  ropo  to  coal  too  fust  and  broke  a  drum) ;  Woodloy  v. 

mine  ln»ufllclenl) ;  Assop  v.  Yates,  2  II.  Metropolitan  Uy.  Co.,  L.  U.  2  Ex.1).  384 ; 

A  N.  768  (machine  loft  near  honrdlnf?  In  40  L.  J.   Kx.  521  (plalntilT  continued  to 

dangerous   position,  work    voluntarily  work  near  a  tunnel  unprotected,  held, 

oontluued);  Dyncn    v.    Leach,  20   L.   J.  no  remedy ;  jury  found  negligence  in  nut 

Kxch.  221  (fall    of  a  welKht  by  .Hllppliig  providing  a  look-out  man)  ;  [«/ife,  p.  ](J2, 

oil  a  dip.    In  this  caso  It  was  hold  that  post,  p.  i73]- 


eM«DtiaIly  murderous  cuntrivaDce,and  it  is  not  creditable  to  our  juris- 
prudence that  sucli  buihliims  are  uot  declared  a  nuisance.  There  is 
notblug  iu  the  reports  wor.se  than  the  cases  that  sustain  railroad  corpora- 
tions  Iu  building  nnd  maintaining  these  man-traps.'  The  case  in  hand  is 
one  of  llrst  impression  iu  this  State,  and  we  are  not  concluded  by  any 
previuus  decision  of  this  court.  We  are  impressed  with  the  opinion  that 
appellant's  counsel  misapprehended  the  force  and  efifect  of  the  facts 
stated  In  appellant's  complaint,  aud  admitted  to  be  true,  as  the  question 
of  their  sufliciency  is  now  presented.  Stripped  of  the  'jugglery  '  of  ad- 
jectives or  qualifying  words,  the  material  facts  admitted  to  be  true  were 
(I)  the  cunstruction  aud  maintenance  bya|)pellant  of  the  highway  bridge 
OTer  its  railroad  track  of  an  iusullicient  height  to  enable  its  brakemen  to 
perform  their  labors  and  discharge  their  duties  without  great  danger 
and  hazard  to  the  life  aud  personal  safely  of  such  brakemen;  (2)  appel- 
lant's kuowledge  of  the  iusullicient  height  of  such  bridge,  and  that  it  was 
dangerous  and  unsafe  for  its  brakemen  to  perfoim  their  labor  and  dis- 
cbarge their  duties  while  passing  under  such  bridge;  (o)  appellee's 
Ignorance  of  the  facts  that  the  bridge  was  too  low,  and  that  it  was 
dangerous  for  him  to  attempt  the  performance  of  the  duty,  imposed  on 
htm  aa  a  brakeman,  by  appellant,  while  passing  under  such  bridge;  and 
(4)  appellee  while  in  appellant's  employ  as  brakeman,  in  his  proper  place, 
and  at  his  post  of  duly,  was  struck  by  the  bridge  under  which  his  train 
was  running,  and  received  the  injuries  described  in  his  complaint.  It 
will  not  do,  we  think,  to  say  that  these  facts  were  not  sufficient  to 
ooostltute  a  cause  of  action  against  appellant,  for  the  recovery  of 
rach  damages  as  appellee  sustained.  It  seems  to  us  that  a  railroad 
company  is  and  ought  to  be  required  to  construct  and  maintain  its  road- 
way and  appendages,  and  its  overhead  structures,  in  such  manner  and 
condition  that  its  employe  or  servant  can  do  and  perform  all  the 
labors  and  duties  required  of  him  with  reasonable  safety.     In  Houston, 


170       NEGLECT    OF    DUTIES    REQUIlllXG    ORDINARY    CARE. 

[134]  Where  a  servant  has  informed  his  master  of 
defects,  it  is  a  question   of   evidence  how   far  he  and  his 

etc.,  Ry.  Co.  v.  Oram  (49  Tex.  341),  it  was  held  by  the  Supreme  Court 
of  Texas  as  follows :  '  It  is  the  duty  of  a  railroad  company  to  use 
ordinary  care  to  provide  such  cars,  read-beds,  tanks,  etc.,  as  are  reason- 
ably safe.  A  failure  to  do  this  is  negligence,  chargeable  to  the  company; 
and  it  is  responsible  in  damages  to  an  employe  for  an  injury  resulting, 
without  his  negligence,  from  a  tank  or  other  appendage  of  the  road,  so 
negligently  constructed  as  to  subject  him  to  unnecessary  and  extraordi- 
nary danger,  which  he  could  not  reasonably  anticipate  or  know,  and  of 
which  he  was  in  fact  not  informed,'  Doubtless  the  general  rule  is  as  It 
was  declared  to  be  by  the  Chief  Justice  Shaw,  in  the  leading  case  of 
Farwell  v.  Boston,  etc.,  E.  Corp.  (4  Mete.  49),  as  follows:  'He  who 
engages  in  the  employment  of  another,  for  the  performance  of  specified 
duties  and  services,  for  compensation,  takes  upon  himself  the  natural 
and  ordinary  risks  and  perils  incident  to  the  performance  of  such  serv- 
ices.' But  there  are  well  defined  exceptions  to  this  general  rule,  one  of 
which  arises  from  the  obligation  or  duty  of  the  master  not  to  expose  the 
servants  while  conducting  his  business  to  perils  or  hazards  which  might 
have  been  provided  against  by  the  exercise  of  due  care  and  proper  dili- 
gence upon  the  part  of  the  master." 

"  In  Chicago,  etc.,  R.  Co.  v.  Swett  (45  111.  197),  it  was  held  by  the  Su- 
preme Court  of  Illinois  that  a  railroad  company  is  bound  to  provide 
suitable  and  safe  materials  and  structures  in  the  construction  of  its  roads 
and  appurtenances,  and  if  from  the  defective  construction  of  its  road  and 
appurtenances,  an  injury  happens  to  one  of  its  servants,  the  company  is 
liable  for  the  injuries  sustained.  The  same  learned  court  has  since  re- 
affirmed the  same  doctrine,  substantially,  in  Illinois  Cent.  R.  Co.  v.  Welch 
(52  111.  183),  and  in  Chicago,  etc.,  R.  Co.  v.  Russell  (91  111.  298).  In 
Hough  V.  Railway  Co.  (100  U.  S.  213)  in  speaking  of  the  exceptions  to 
the  general  rule,  that  a  master  is  not  liable  to  his  servant  for  injuries 
sustained  by  the  negligence  of  his  fellow-servants,  the  Supreme  Court  of 
the  United  States  say:  'One,  and  perhaps  the  most  important  of  those 
exceptions  arises  from  the  obligation  of  the  master,  whether  a  natural 
person  or  a  corporate  body,  not  to  expose  the  servant,  when  conducting 
the  master's  business,  to  perils  of  hazards  against  which  he  may  be 
guarded  by  proper  diligence  upon  the  part  of  the  master.  To  that  end 
the  master  is  bound  to  observe  all  the  care  which  prudence  and  the  exi- 
gencies of  the  situation  require  in  providing  the  servant  with  machinery 
or  other  instrumentalities  adequately  safe  for  the  use  of  the  latter.'  The 
doctrine  declared  is  in  harmony  with  and  supported  by  the  recent  decis- 
ions of  the  court  in  the  well  considered  case  of  Indiana  Car  Co.  v.  Parker 
(100  Ind.  181).  We  are  of  opinion  that  the  facts  stated  in  appellee's 
complaint  are  sufficient  to  constitute  a  cause  of  action,  and  that  appel- 
lant's demurrer  thereto  was  correctly  overruled." 


MASTEIi   AND    SERVANT.  1  7  1 

master  have     [^^A]     agreod  to  :i  fiosh  service  upon  differ- 
ent terras,  with  an  increase  of  liability  on  the  master's  part 


So  where  a  railroad  engineer  was  struck  and  killed  by  a  signal  po»t 
when  Ifuuinn  out  of  his  euiiiue  to  walcli  for  a  sisual,  it  was  huid  tliul  tlio 
company  was  not  liable  for  his  death,  lie  buliifi  aware  of  the  danf^er. — 
Lovejoy  V.  Boston,  etc.,  K.  Corporation,  12'>  Mass.  71);  28  Am.  H»p.  200. 

An  engineer  who  is  familiar  with  the  road  cannot  recover  for  an  in- 
jury sustained  by  his  heail  striking  a  bridge  while  he  was  leanim^  out  of 
the  cab  window  and  watching  his  train,  although  he  was  running  a  new 
englnti  which  was  several  inches  wider  than  the  one  he  had  been  hand- 
ling.—Bellows  V.  Pennsylvania,  etc.,  R.  Co.,  157  Pa.  St.  51;  27  Atl.  Rep. 
685;  33  W.  N.  C.  164.  See  Thain  v.  Old  Colony  R.  Co.  (Mass.),  37  N.  E. 
Rep.  309. 

And  where  a  conductor  of  a  train  neglected  to  give  the  usual  signal  to 
stop  when  passing  a  station,  and  the  engineer  leaned  out  to  look  for  the 
signal,  and  his  head  struck  against  a  water-crane,  and  he  was  killed,  it 
wa-t  held  that  the  company  was  not  liable,  the  negligence  of  the  conduc- 
tor not  being  the  proximate  cause  of  the  accident.  — Gould  v.  Railroad, 
Co.,  S.  C.  la.,  20  Rip.  301. 

And  where  a  brakeraan  was  struck  by  a  snow  bank  made  by  a  snow 
plough  when  the  train  was  in  motion,  it  was  held  that  no  action  would  lie 
for  resulting  injuries.  —  Dowell  v.  Burlington,  etc.,  Ry.  Co.,  G2  la.  62'J, 
See  Bengstonr.  Chicago,  etc,  Ry.  Co.,  47  Minn.  480;  50  N.  W.  Rep.  531. 

But  where  a  bnikeman  descending  a  ladder  of  a  moving  freight  car  to 
throw  a  switch  was  struck  by  a  telegraph  pole  standing  eighteen  inches 
from  the  car  and  killed,  the  pole  having  been  in  that  position  for  three 
years,  and  there  was  no  evidence  that  the  brakeraan  or  defendant  knew  of 
It,  it  was  held  that  an  action  against  the  company  could  be  maintained 
for  the  killing,  —  Chicago,  etc.,  R.  Co.  v.  Russell,  'Jl  111.  298 ;  33  Am.  Rep. 
64.  See  Kearns  v.  R.  R.,  S.  C.  la.,  20  Rep.  3.33;  compare  Gould  v.  R.  R. 
Co.,  S.  C.  la.,  2C  Rep.  301 ;  Murphy  v.  Wabash  R.  Co.,  115  Mo.  Ill;  21 
8.  W.  Rep.  862;  Boss  v.  Northern  Pac.  R.  Co.,  5  Dak.  305;  40  N.  W.  Rep. 
590;  Cregg  r.  Chicago  &\V.  M.  Ry.  Co.,  01  Mich.  024;  52  N.  W.  Rep.  G2; 
Texas  &  P.  Ry.  Co.  v.  llohn,  1  Tex.  Civ.  App.  36;  21  S.  W.  Rep.  942; 
'  -Ice  r.  National  City  &  O.  Ry.  Co.,  100  Cal.  282;  34  Pac.  Rep.  720, 
;  Kansas  City,  Ft.  S.  &  G.  R.  Co.  v.  Kier,  41  Kun.  001 ;  21.  Pac.  Rep. 
;;0;  Scanlon  v.  Boston  &.  A.  R.  Co.,  147  Mass.  484;   18  N.  Y..  Rep.  209. 

A  servant  of  the  defendant  had  been  three  or  four  days  engaged  as  a 
brakeman,  and  as  one  of  the  station  yard  crew,  he  being  previously  a 
stranger  to  the  locality.  While  descending  from  a  moving  freight  car  by 
a  side  ladder,  he  was  swept  off  by  a  trestle  standing  Hi  inches  from  the 
«lde  of  the  car,  and  killed.  The  case  was  considerf<l  .sufllcient  to  go  to 
the  jury  upon  the  question  (1)  of  defendant's  negligence;  (2)  as  to 
j  whether  the  servant  knew  this  danger,  or  was  chargeable  with  want  of 
I  ordinary  prudence  if  he   had  failed  to  inform  himtelf  of  it,  so  that  he 


172      NEGLECT   OF   DUTIES   REQUIRING   ORDINARY   CARE. 

or  of  danger  [13G]  upon  the  servant's.  If  the  master 
ha8  expressly  or  impliedly  promised   to   repair  a  defect, 

should  be  deemed  to  have  assumed  the  risk;  and  (3)  as  to  his  contribu- 
tory negligence.— Robel  v.  Railroad  Co.,  35  Minn.  84,  27  N.  W.  Rep.  306. 

Railroad  brakemen  or  car  couplers  are  held  to  assume  the  risks  of  in- 
juries in  coupling  cars. —  Hathaway  v.  Michigan,  etc.,  R.  Co.,  51  Mich. 
253;  47  Am.  Rep.  569;  Toledo,  etc.,  R.  Co.  ».  Fredericks,  71  111.  294; 
Northern,  etc.,  R.  Co.  v.  Husson,  101  Pa.  St.  1;  47  Am.  Rep.  690; 
Hatter  v.  Illinois  Cent.  R.  Co.,  69  Miss.  642;  13  So.  Rep.  827;  Jackson- 
ville, T.  &  K.  "W.  Ry.  Co.  w.  Galvin,  29  Fla.  636;  II  So.  Rep.  231; 
Southern  Pac.  Co.  v.  Seley,  152  U.  S.  145;  14  S.  Ct.  Rep.  530,  reversing 23 
Pac.  Rep.  751;  Arnold  v.  Delaware  &  H.  C.  Co.,  125  N.  T.  15;  25  N.  E. 
Rep.  1064,  distinguishing  Goodrich  v.  Railroad  Co.,  116  N.  Y.  398;  22  N. 
E.  Rep.  397. 

When  loaded  with  projecting  timbers  (The  Atchison,  etc.,  R.  Co.  v. 
Plunkett,  25  Kan.  188;  Northern  Central  R.  Co.  v.  Husson,  101  Pa.  St.  1); 
the  unfortunate  employes  being  held  guilty  of  contributory  negligence 
in  not  stooping  low  enough,  or  delaying  a  second  or  two  too  long,  and  la 
consequence  getting  their  heads  crushed. —  Day  y.  Toledo,  etc.,  R.  Co., 
42  Mich.  523.  See  Mexican  Cent.  Ry.  Co.  v.  Shean  (Texas),  18  S.  W. 
Rep.  151;  Irvine  u.  Flint  &  P.  M.  R.  Co.,  89  Mich.  416;  50  N.  W. 
Rep.  1008. 

But  where  an  inexperienced  switchman,  seventeen  days  in  the  service 
of  a  company  in  coupling  box  cars,  stepped  into  a  ditch  of  which  lie  was 
not  aware,  and  over  which  a  shadow  was  cast  by  the  car,  and  got  his 
head  crushed  between  the  projecting  timbers,  it  was  held  that  the  com- 
pany was  liable  for  his  death —  Brown  v.  Atchison,  etc.,  R.  Co.,  31  Kao. 
1 ;  29  Kan.  186.  See  Ragan  v.  Toledo,  etc.,  Co.,  91  Mich.  379 :  51  N.  W. 
Rep.  1004. 

Where  an  employe  in  a  coal  mine  left  the  room  where  he  was  at  work 
and  went  to  another  according  to  custom,  to  visit  some  other  employes, 
and  while  there  the  roof  fell  in  by  reason  of  the  decay  and  insufficiency 
of  the  supports  and  killed  him,  it  was  held  that  no  action  could  be  main- 
tained against  the  employer.— Wright  v.  Rawson,  52  la.  329;  35  Am. 
Rep.  275.  Here,  however,  the  servant  was  not  in  the  line  of  his  employ- 
ment at  the  time  of  the  injury.  In  a  similar  case  where  the  servant 
was  in  the  line  of  his  employment  the  contrary  was  held. —  Oberfelder 
V.  Doran,  26  Neb.  118;  41  N.  W.  Rep.  1094.  See  McFee  u.  Vicksburg, 
etc.,  R.  Co.,  42  La.  An.  790;  7  So.  Rep.  720. 

In  Learyw.  Boston,  etc.,  R.  Co., (139  Mass.  680;  32  Alb.  L.  J.  243,  297)i 
it  was  held  that  a  servant  takes  the  ordinary  risks  of  a  dangerous  em- 
ployment in  which  he  continues,  although  he  was  hired  for  a  different 
and  less  dangerous  business  and  was  put  into  the  more  dangerous  busi- 
ness against  his  protest.  The  court  said:  "  But  in  the  case  at  bar,  the 
plaintiff  knew  that  the  duty  of  aiding  as  fireman  on  the  engine  was  not 


MASTER   AND   SEUVANT.  173 

Ihcu,  it"  ail  accident  happened  while  such  promise  is  running, 
the  servant  can  recover  (/;) ;  or,  if  the  servant  continues  in 

(p)  l»»Ujn)on  V.  Wallace,  1  Murq.  II.  L.  748;  Clark  v.  IIolmcB,  7  II.  Jt  N.  OT; 

within  his  orlyluul  contract  as  a  laborer.  Ho  determined  to  perform  it  as 
a  part  of  hl8eu};ai;ement  with  the  defendant  rather  than  lose  his  position 
M  ft  laborer.  In  so  doing  he  must  be  held  to  have  assumed  Us  necessary 
rlaks.  Such  Is  the  doctrine  of  Woodley  v.  Metropolitan  Railway,  45  L.J. 
Ex.  521.  The  plaiutifiE  did  this,  It  Is  true,  rather  than  lose  the  position 
which  he  had,  and  which  he  desired  to  retain,  but  by  so  doing,  engrafted 
this  duly  on  his  original  contract  of  which  he  made  it  a  part."  See 
I'rentlss  v.  Kent  Furii.  Mfg.  Co.,  G3  Mich.  478;  30  N.  W.  K-p.  lO'J.  But 
see  Michael  i;.  Koanoke  Mach.  Works,  'JO  Va.  4<J2;  19  S.  E.  Uep.  2(;i. 

In  anoiher  case  it  was  held  that  wliere  a  lat)orer  engaged  in  spiking 
down  rails  was  furnished  with  a  hammer  obviously  defective,  and  he  pro- 
tested against  working  with  it,  but  was  ordered  to  use  it  on  pain  of 
loelng  his  place,  and  was  injured  by  reason  of  its  defective  condition, 
the  company  was  held  liable. —  East  Tenn.,  etc.,  R.  Co.  v.  DulHeld,  12 
Lea,  63;  47  Am.  Kep.  319. 

This  same  court  held,  in  an  ill-considered  case,  that  a  railroad  laborer 
famished  by  his  section  master  with  an  iron  maul  known  by  the  latter  to 
be  defective,  and  injured  in  consequence  of  such  defect,  can  maintain  an 
action  against  the  railroad  company,  although  the  defect  might  have 
been  discovered  by  the  laborer  on  inspection. —  Guthrie  v.  Louisville, 
etc.,  K.  Co.,  11  Lea,  372;  47  Am.  Rep.  286. 

{»)  Such  contracts  have  been  held  invalid. —  Roesner  v.  Hermann,  U. 
8. 29  C.  C,  10  Biss.  486.  See  Kansas,  etc.,  R.  Co.  v.  Peavey,  29  Kan .  169 ; 
44  Am.  Rep.  630;  Louisville  &  N.  R.  Co.  v.  Orr,  91  Ala.  548;  8  So.  Rep. 
$60;  Johusou  v.  Richmond  &  D.  R.  Co.,  86  Va.  975;  11  S.  E.  Rep.  829; 
Hlssong  p.  Richmond  &  D.  R.  Co.,  91  Ala.  514;  8  So.  Rep.  776;  Georgia 
Pac  Ry.  Co.  v.  Dooley,  86  Ga.  294;  12  S.  E.  R.p.  923;  Purdy  v.  Rome, 
etc.,  R.  Co.,  125  N.  Y.,  209;  26  N.  E.  Rep.  255,  ullirraing  5  N.  Y.  S.  Rep. 
217;  Richmond  v.  I).  R.  Co.  v.  Jones,  92  Ala.  218;  9  So.  Rep.  27t;;  Rus>cll 
V.  Rlciim<m(l  &  D.  R.  Co.,  47  Fed.  Rep.  204;  International  &  G.  N.  Ry.  Co. 
».  HInzie,  82  Tex.  623 ;  18  S.  W.  Rep.  G81.  But  in  Georgia  it  Is  held  that 
the  servant  may  by  contract  assume  all  risks  of  his  employment,  except 
§ach  as  arise  from  the  master's  criminal  negligence. —  Fulton  B.  &  C, 
Mills  V.  Wilson,  89  Ga.  318;  15  S.  E.  Rep.  322,  following  other  Georgia 
cases. 

Forbidden  by  statute  in  Massachusetts,  (Pub.  St.  Ch.  74,  §  3);  Iowa, 
(1  Rev.  Code,  1880,  342,  §  1307);  Wyoming  (Laws  1890-91,  c.  28,  p.  141); 
Texas  (Qen.  Laws,  1891,  c.  24,  |  3,  p.  25). 

(o)  Kelley  v.  Silver  Spring  Co.,  12  R.  I,  112;  34  Am.  Rep.  615;  Hough 
•.  Texas,  etc.,  R.  Co.,  100  D.  S.  213;   Clark  v.  St.  Paul,  etc.,  R.  Co.,  23 


174      NEGLECT   OF   DUTIES   REQUIRING   ORDINARY   CARE. 

the  service  in  the  reasonable  expectation  that  the  repairs  will 
be  effected,   he  can  recover  {q).     If   the  promise  is  not 


(9) 


Holmes  r.  Worthington,  2  F.  &  F.  53,  per  Willes,  J.  {post,  p.  175]. 


Minn.  128;  Dorsey  v.  Phillips,  42  Wis.  583;  Hayden  v,  Manfg.  Co.,  29 
Conn.  548;  Foley  v.  Cbicago,  etc.,  R.  Co.,  48  Mich.  622;  42  Am.  Rep.  481; 
Lumley  v.  Caswell,  47  la.  159;  Hanrathy  v.  Northern,  etc.,  R.  Co.,  46 
Md.  280;  Sullivan  v.  India  Rubber  Manfg.  Co.,  113  Mass.  396;  Hatha- 
way V.  Michigan  Cent.  R.  Co.,  51  Mich.  253;  47  Am.  Rep.  569;  Bell  v. 
Western  &  Atlantic  R.  Co.,  70  Ga.  566;  Coal  Run  Coal  Co.  v.  Jones,  127 
111.  370;  20  N.  E.  Rep.  89,  affirming  8  N.  E.  Rep.  865;  Way  v-  Chicago  & 
N.  W.  Ry.  Co.,  76  la.  393;  41  N.  W.  Rep.  51;  Easton  v.  Houston  &  T.  C. 
Ry.  Co.,  39  Fed,  Rep.  65;  Appel  v.  Buffalo,  etc.,  R.  Co.,  Ill  N.  Y.  550; 
19  N.  E.  Rep.  93;  Litchfleld  C.  &  M.  Co.  v.  Romine,  39  111.  App.  624; 
Bengston  v.  Chicago,  etc.,  Ry.  Co.,  47  Minn.  486;  50  N.  W.  Rep.  531; 
Southern  Kansas  Ry.  Co.  v.  Moore,  49  Kan.  616;  31  Pac.  Rep.  138;  Brad- 
shaw  V.  Louisville  &  N.  R.  Co.  (Ky.),  21  S.  W.  Rep.  346;  O'Maley 
V.  South  B.  G.  Co.,  158  Mass.  135;  32  N.  E.  Rep.  1119;  Rumsey  v.  Dela- 
ware, etc.,  R.  Co.,  151  Pa.  St.  74;  25  AtL  Rep.  37;  31  W.  N.  C.  20;  King 
V.  Ford  River  Lbr.  Co.,  93  Mich.  172;  53  N.  W.  Rep.  10;  Anderson  v. 
H.  C.  Akeley  Lbr.  Co.,  47  Minn.  128;  40  N.  W.  Rep.  664;  Illinois  Cent. 
R.  Co.  V.  Morrissey,  45  111.  App.  127;  Feely  v.  Pearson  Cordage  Co.,  161 
Mass.  426;  37  N.  E.  Rep.  368;  Norfolk  &  W.  R.  Co.  v.  McDonald,  88  Va. 
352;  13  S.  E.  Rep.  706. 

A  servant  continuing  to  work  without  complaint  with  a  fellow-ser- 
vant, known  by  him  to  be  incompetent,  assumes  the  additional  risk. — 
Smith  V.  Sibley  Mfg.  Co.,  85  Ga.  333;  11  S.  E.  Rep.  616;  Grube  o.  Mis- 
souri Pac.  Ry.  Co.,  98  Mo.  330;  11  S.  W.  Rep.  736;  Warmington  ». 
Atchison,  etc.,  R.  Co.,  46  Mo.  App.  159;  Latremouille  v.  Bennington  &  R. 
Co.,  63  Vt.  336;  22  Atl.  Rep.  656;  New  York  &  T.  S.  S.  Co.  v.  Anderson, 
50  Fed.  Rep.  462;  1  U.  S.  App.  17G;  1  C.  C.  A.  529;  Wust  w.  Erie  City 
Iron  Works,  149  Pa.  St.  263;  24  Atl.  Rep.  291.  So  where  a  servant  con. 
tinues  in  the  employment  with  help  which  he  knows  to  be  insufQcient, 
he  cannot  recover  for  injury  caused  by  such  insufficiency  of  help.— 
Richmond  &  D.  R.  Co.  v.  Mitchell,  92  Ga.  77;  18  S.  E.  Rep.  290;  Southern 
Kansas  Ry.  Co.  v.  Drake,  53  Kan.  1;  35  Pac.  Rep.  825;  Eddy©. 
Rogers  (Tex.  Civ.  App.),  27  S.  W.  Rep.  295;  Atchison,  T.  &  S.  F.R.  Co. 
V.  Schroeder,  47  Kan.  315;  27  Pac.  Rep.  965. 

This  rule  is  relaxed  in  cases  of  persons  too  young  or  too  ignorant 
to  appreciate  danger. —  Landing  v.  New  York,  etc.,  R.  Co.,  49  N.  Y.52I; 
Hill  V.  Gast,  55  Ind.  45;  Hickey  v.  Taaffe,  105  N.  Y.  26;  12  N.  E.  Rep. 
286;  Brazil  Block  Coal  Co.  v.  Gaffney,  119  Ind.  455;  21  N.  E.  Rep.  1102; 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Jones,  76  Tex.  350;  13  S.  W.  Rep.  374;  Hinck- 
ley V.  Horazdowsky,  133  111.  359;  24  N.  E.  Rep.  421;  Wynne  v.  Conklin, 
86  Ga.  40;  12   S.  E.   Rep.  183;    Taylor  v.  Wootan,    1  Ind.  App.  188;   27 


MASTER    AND    SERVANT.  175 

performed  in  a  reasonable  time,  mid  the  servant  continues 
Id  the  employment,  an  inferonco  arises  of  now  terms  having 


N.  E.  Rep.  602;  Yearaan  v.  Noblesvllle  F.  &  M.  Co.,  (Ind.  App.)  30  N.  E. 
Itop.  10;  Texas  &  V.  lly.  Co.  v.  Brick,  83  Tex.  5'J8;  20  S.  W.  Hop.  511. 

The  mere  fact  that  the  servant  Is  a  minor  cannot  exercise  a  control- 
ling influence  where  he  Is  sufllciently  Intelligent  to  coraprehcnd  the 
Jangcrs  of  his  employment. —  Evansvllle  &  II.  R.  Co.  v  Henderson,  134 
Ind.  68C;  33  N.  E.  Rep.  1021;  Opley  w.  Miles,  13'J  N.  Y.  458;  34  N.E.  Rep. 
1059;  Qoff  V.  Norfolk  &  W.  R.  Co.,  3G  Fed  Rep.  2i)'J;  Kelley  v.  Barber 
Asphalt  Co.  (Ky.),  20  S.  W.  Rep.  271;  Smith  u. Irwin,  51  N.  J.  L.  507; 
18  Atl.  R.'p.  85;  Mc(\irrai;her  v.  Rogers,  120  N.  Y.  520;  24  N.  E.  Rep. 
812;  Buckley  v.  Gutla-rercha  &  R.  Mfg.  Co.,  113  N.  Y.  540;  21  N.  E. 
Rep.  717. 

In  Flyn  v.  Kansas  City,  etc.,  R.  Co.  (78  Mo.  195),  It  was  held  that  the 
lltbllily  of  a  railroad  company  for  an  injury  sustained  by  an  engineer 
through  the  defects  of  an  air  brake  of  a  locomotive,  was  not  discharged 
on  proof  that  the  brake  was  out  of  order,  that  the  engineer  knew  this  and 
that  if  It  had  been  in  order  the  accident  might  have  been  averted.  But 
the  rule  Is,  that  the  servant's  knowledge  of  the  danger  arising  from  defect- 
ive machinery  bars  his  recovery. —  Lee  v.  Southern  Pac.  R.  Co.,  101  Cal. 
118;  35  Pac.  Rep.  572;  St.  Louis,  A.  &  T.  Ry.  Co.  v.  Denny,  5  Tex.  Civ. 
App.  359;  24  S.  W.  Rep.  317;  Louisville,  E.  &  St.  L.  C.  R.  Co.  v.  Allen, 
47  111.  App.  4G5;  Rogers  v.  Galveston  City  R.  Co.,  7G  Tex.  502;  13  S.  W. 
Utp.  640;  Michael  v.  Stanley,  75  Md.  404;  23  Atl.  Rep.  1094;  Clark  v. 
Missouri  Pac.  Ry.  Co.,  48  Kan.  054;  29  Pac.  Rep.  1138;  Monaghan  u. 
New  York,  etc.,  R.  Co.,  45  Ilun,  113. 

(p)  Manufacturing  Co.  r.  Morrissey,  40  Ohio  St.  148;  48  Am.  Rep.0G9; 
Ptllersonr.  Pittsburgh,  etc.,  R.  Co.,  76  Pa.  St.  389;  18  Am.  Rep.  412; 
Hoagh  r.  Texas,  etc.,  R.  Co.,  100  U.  S.  213;  Greene  v.  Minneapolis,  etc., 
R.  Co.  248;  47  Am.  Rep.  785;  Missouri  Furnace  Co.  v.  Abend,  107 
III.  44;  47  Am.  Rep.  425;  Kroy  v.  Cliicago,  etc.,  R.  Co.,  32  la.  257; 
Louisville  &N.  R.  Co.  v.  Kenley,  92  Tcnu.  207;  21  S.  W.  Rep.  320;  Mc- 
Coruilck  Ihirvesting  Machine  Co.  v.  Burandt,  13G  III.  170;  20  N.  E.  Rep. 
588;  Southern  Kan.  Ry.  Co.  v.  Crocker,  41  Kan.  747;  21  Pac.  Rep.  785; 
New  Jersey  &  N.  Y.  R.  Co.  v.  Young,  49  Fed.  Rep.  723;  1  U.  S.  App.  96; 
1  C.  C.  A.  428;  Goldberg  v.  Schrayer,  37  111.  App.  310;  Southern  Pac. 
Co. «.  Lea.sh,  2  Tex.  Civ.  App.  68;  21  S.  W.  Rep.  503;  Chicago&  G.  W. 
R.Co.  V.  Travis,  44  111.  App.  406;  Breckenridge  Co.  v.  Ilicks,  94  Ky.  362; 
22  S.  W.  Rep.  554;  Rothenberger  u.  Northwestern  Milling  Co.  (Minn.), 
MN.  W.  Rep.  531. 

(?)  Patterson  v.  Pittsburg,  etc.,  R.  Co.,  76  Pa.  St.  389;  18  Am.  Rep. 
412;  Hawley  t?.  New  York,  etc.,  R.  Co.,  82  N.  Y.  370;  Buzzell  v.  Manu- 
ftcturlngCo.,  48  Me.  113;  Greene  v.  Minneapolis,  etc.,  R.  Co.,  31  Minn. 
248;  47  Am.  Rep.  785;  Flynn  v.  Kansas,  etc.,  R.,  78  Mo.  195;  47  Am. 
R«P.  98;  Schulz  V.  Rohe,  24  N.  Y.    S.  Rep.  118;  St.  Clair  Nail  Co.  v. 


176      NEGLECT    OF   DUTIES    REQUIRING   ORDINARY   CARE. 

been  agreed  upon,  and  the  servant  cannot  recover.  The 
reason  of  this  is  said  to  be  (Clark  v.  Holmes,  supra)  that 
there  is  contributory  negliojence  on  the  part  of  the  servant; 
but  it  is  suggested  in  *'  Sherman  on  Negligence,"  s.  97, 
that  the  true  ground  is  that  the  servant  has  waived  the 
objection  and  induced  the  master  to  suppose  that  it  is 
waived,  or,  as  we  are  inclined  to  say,  the  servant  has 
renewed  the  service  accepting  the  risk. 

The  principles  upon  which  a  master  is  held  not  to  be 
responsible  to  his  servants  for  injuries,  the  risk  of  which  the 
servant  has  undertaken  (r),  are  very  clearly  stated  by  Lord 
[137]  Cran worth  (&').  After  stating  the  liabilities  of  mas- 
ters to  third  persons,  his  lordship  thus  proceeds  to  deal 
with  the  master's  liability  to  his  servant :  — 

**  But  do  the  same  principles  apply  to  the  case  of  a 
workman  injured  by  the  want  of  care  of  a  fellow-work- 
man (t)  engaged  together  in  the  same  work?  I  think 
not.  When  the  workman  contracts  to  do  loork  of  any  partic- 
ular sort  he  knotos,  or  ought  to  know,  to  what  risks  he  is 
exposing   himself;  he    knows,  if    such    be   the   nature  of 

(r)  As  to  who  is  a  "  fellow -servant,"  supra.    See  also  Lovell  v.  Howell,  L.  R. 

Bee  post,  p.  179 ;  as  to  "  common  employ-  1  C.  P.  D.  161 ;  45  L.  J.  0.  P.  387  (sack  o( 

ment,"  see  post.  grain  on  a  crane  injuring  waterman). 

(s)  Bartonshill    Coal   Co.   v.  Reid,  3  it)  This  is  an   examjjle  of   the  rnle, 

Macq.282;  and  the  passage  isapproved  but  not  the  rnle    itself;    see  Wilson  v. 

of  by  Cairns,  L.  C,  In  Wilson  v.  Merry,  Merry,  L.  R.  1  Sc.  App.,  p.  332. 

Smith,  43  III.  App.  105;  New  Jersey  &  N.  Y.  R.  Co.  v.  Young,  49  Fed. 
Rep.  723;  1  U.  S.  App.  96;  1  C.  C.  A.  428;  Weber  Wagon  Co.  v.  Kehl,  139 
111.644;  29  N.  E.  Rep.  714;  Schlitz  v.  Pabst  Brewing  Co.  (Minn.),  59  N. 
W.  Rep.  188. 

In  G.  H.&  San  Antonio  Ry.  Co.  (59  Tex.  10;  46  Am.  Rep.  261),  it  was 
held  that  the  servant's  complaint  to  the  master  of  the  defective  character 
of  the  machinery  he  was  employed  to  work  with,  did  not  relieve  him 
from  the  charge  of  contributory  negligence  in  continuing  to  use  it 
unless  the  master  expressly  or  impliedly  promised  to  repair  the  defect. 
If  the  servant  remains  in  the  employment  after  reasonable  time  for 
the  defect  to  be  remedied  as  promised,  he  assumes  the  risk  of  such 
defect.— Joliet,  A.  &  N.  Ry.  Co.  v.  Velie  (111.),  26  N.  E.  Rep.  1086; 
Davis  V.  Graham,  2  Colo.  App.  210;  29  Pac.  Rep.  1007. 


MASTEK    AND    KEKVANT.  177 

the  risk,  that  wiiut  of  care  on  the  part  of  u  fellow- 
servttiit  (u)  limy  be  injurious  or  fatal  to  him,  and  that 
against  such  want  of  care  his  employer  cannot  l)y  possi- 
bility protect  him.  If  Buch  want  of  care  should  occur, 
and  evil  is  the  result,  he  cannot  say  that  he  does  not  know 
whether  the  master  or  the  servant  was  to  blame.  lie 
knows  that  the  blame  was  wholly  that  of  the  servant.  Ho 
cannot  say  the  master  need  not  have  enf]jaged  in  the  work 
at  all,  for  he  was  party  to  its  being  undertaken.  Prin- 
ciple, therefore,  seems  to  me  opposed  to  the  doctrine  that 
[138]  the  responsibilit}'  of  a  master  for  the  ill  conse- 
quences of  his  servant's  carelessness  is  applicable  to  the 
demand  made  by  a  fellow-workman  in  respect  of  evil  re- 
sulting from  the  carelessness  of  a  fellow  workman  when 
engaged  in  a  common  work." 

It  should,  however,  bo  remarked  that  probably,  in  point 
of  fact,  no  such  reasoning  exists  in  the  mind  of  a  person 
undertaking  a  service,  and  that,  on  the  contrary,  most  serv- 
ants would  be  much  suri)rised  to  learn  the  real  state  of  the 
law.  It  has  also  been  doubted  whether  the  law  as  it  stands 
at  present  is  not  injurious,  and  is  not  calculated  to  induce 
carelessness  in  both  masters  and  servants.  The  master 
does  not  care  to  know  what  careless  acts  arc  done  by  his 
servant-*,  and  the  servants  do  not  care  if  the  master  does 
not.  When  an  accident  happens  no  one  is  liable,  and  no- 
body cares  except  the  unfortunate  man  who  is  injured. 
It  is  doubted  whether  there  is  sufficient  reason  for  depart- 
ing from  the  ordinary  rule  that  masters  are  responsible  for 
the  negligence  of  their  servants,  but  not  for  acts  done  out 
of  the  course  of  their  employment  (.c). 

The  rule  above  laid  down  by  Lord  Cranworth  only  ap- 
plies to  such   dangers  as   the   servant  might  be  reasonably 

(•)  As  to  this,  see  in/ra.  mUlgated  the  evil.    [See  Beach  on  Cont. 

(»)  The  abovn  pnrapnraph  was  written  Neg.,  pp.  321,  324,  where  the  doctrine  la 

h«(orc  the   panolnR  of   the   Employers'  severely  criticised.] 
LUbllity  Act,  which  has,  in  some  degree, 

12 


178       XEGLECT    OF    DUTIES    REQUIRING    ORDINARY    CARE. 

aware  of  (?/),  and  even  if  aware  of  the  danger,  yet  if  he 
reasonably  thought  that  by  using  additional  caution  he  could 
avoid  the  danger,  and  if  he  did  use  additional  and  proper 
caution,  the  master  would,  it  has  been  suggested,  be  still 
liable  (z). 

If  the  master's  own  negligence  is  the  proximate  cause  of 
the  injury  it  is  no  defense  for  him  to  allege  that  there  was 
contributory  negligence  in  a  fellow-servant  (a). 

(y)  See  Britton  v.  Gt.  Western  Cot-  River  Ry.  Co.  v.  Barber,  5  Ohio  St.  541, 
ton  Co.,  L.  R.  7  Ex.  130 ;  41  L.  J.  Ex.  99.  565,  per  Hartley,  J. 

(s)  Shearman,  s.  96,   citing  Snow  v.  (a)  Cayzer  v.  Taylor,   10   Gray,  274; 

Housatonlc  Ry.  Co.,  8  Allen,  441;  Mad.  see  post,  Ch.  VI.,  Contributory  Negli- 
gence.  [>os<,  p.  179], 


(a)  Clark  v.  Soule,  137  Mass.  380;  Cone  v.  Delaware,  etc.,  R.  Co.,  81 
N.  Y.  206;  37  Am.  Rep.  491;  Stettler  v.  Chicago,  etc.,  R.  Co.,  46  "Wis. 
497;  29  Am.  Rep.  102;  Critchfleld  v.  Richmond,  etc.,  R.  Co.,  76  N.  C.  320; 
Grand  Trunk  R.  Co.  v.  Cummings,  106  U.  S.  700;  Paulmier  v.  Erie  Kj. 
Co.,  34  N.  J.  L.  151.  See  The  Atchison,  etc.,  R.  Co.  v.  Holt,  29  Kau. 
149;  P.  C.  &  St.  L.  Ry.  Co.  v.  Henderson,  37  Ohio  St.  549;  Franklin  v. 
Winona  &  St.  P.  R.  Co.,  37  Minn.  409;  34  N.  W.  Rep.  898;  Richmond  & 

D.  R.  Co.  V.  Pannill,  89  Va.  552 ;  16  S.  E.  Rep.  748;  Coppins  v.  New  York, 
etc.,  R.  Co.,  122  N.  Y.  557;  25  N.  E.  Rep.  915,  affirming  48  Hun,  292; 
Bean  v.  Western  N.  C.  R.  Co.,  107  N.  C.  731;  12  S.  E.  Rep.  600;  Ander- 
son V.  The  Ashebrook,  44  Fed.  Rep.  124;  Norfolk  &  W.  R.  Co.  v.  Phelps, 
90  Va.  665;  19  S.  E.  Rep.  652;  Clyde  v.  Richmond  &  D.  R.  Co.,  59  Fed. 
Rep.  394;  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Berkey,  136  Ind.  181;  35  N. 

E.  Rep.  3;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Kizziah,  76  Tex.  81;  23  S.  W.  Rep. 
578;  Delude  v.  St.  Paul  City  Ry,  Co.,  55  Minn.  63;  56  N.  W.  Rep.  461; 
Morrisey  v.  Hughes,  65  Vt,  553;  27  Atl.  Rep.  205;  Northwestern  Fuel 
Co.  V.  Danielson,  57  Fed.  Rep.  915;  6  C.  C.  A.  281;  Union  Pac.  Ry.  Co.». 
Callaghan,  56  Fed  Rep.  988;  6  C.  C.  A.  205;  Cincinnati,  N.  O.  &  T.  P.  B. 
Co.  V.  Clark,  57  Fed.  Rep.  125;  6  C.  C.  A.  281. 

(6)  Farwell  v.  Boston,  etc.,  R.  Co.,  4  Mete.  49;  Murray  v.  South  Car- 
olina R.  Co.,  1  McMillan,  385;  Chicago,  etc.,  R.  Co.  v.  Ross,  112  U.  S. 
377;  Alabama,  etc.,  Ry.  Co.  v.  Waller,  48  Ala.  459;  Crusselle  v.  Puph,67 
Ga.  430;  44  Am.  Rep.  724;  Peterson  w.  Whitebreast  Coal,  etc.,  Co.,  60 
la.  673;  32  Am.  Rep.  148;  Chicago,  etc.,  R.  Co.  v.  Geary,  110  111.383; 
Johnson  v.  Boston  Towboat  Co.,  135  Mass.  209;  46  Am,  Rep.  458;  Joslln 
V.  Grand  Rapids  Ice  Co.,  50  Mich.  516;  45  Am.  Rep.  54;  Murphy  v.  Boston, 
etc.,  R.  Co.,  88  N.  Y.  146;  42  Am.  Rep.  240;  Keystone  Bridge  Co.  v. 
Newberry,  96  Pa.  St.  246;  42  Am.  Rep.  543;  Luebke  v.  Chicago,  etc.,  R. 
Co.,  59  Wis.  127;  48  Am,  Rep.  483;  Theleman  v.  Moeller,  73  la.  108;  34 


FELLOW-SKIIVANT.  179 

[130]  A  niastor  is  not  in  gencriil  lialde  to  his  servant 
for  duiuago  resulting  from  the  negligence  of  ixfdloio-servant 
iu  the  course  of  their  common  employment  {h). 

(6)  WIgmoro  r.  Jay,  5  Exch.  354;  wick  Ry.  Co.,  5  Kxch.  343;  Voso  r.  Lan- 
Uaiobln*on  v.  York,  Nowcastio  &  Bor-       casblro  A  Yorks.  Ky.,«upra. 


N.  W.  Rep.  7C.5;  Fisk  v.  Contml  Pac.  R.  Co.,  72  Cal.  38;  13  Par.  Rep. 
U4;  Dewey  p.  Parke,  Davis  &  Co.,  7<;  Mich.  C31 ;  43  N.  W.  Rep.  (;44  ; 
Tort  Hill  Stoue  Co.  v.  Orin,  84  Ky.  183;  Byrnes  v.  N.-w  York,  etc.,  Co., 
118  N.  Y.  251 ;  21  N.  E.  Rep.  60;  Tlie  Sachem,  42  Fed.  Rep.  CG;  Ilaoley  r. 
Grand  Trunk  Ry.  Co.,  62  N.  H.  274;  Filbert  v.  Delaware  &  H.  C.  Co., 
(  New  York  ),  23  N.  E.  Rep.  1104;  Johnson  v.  Ashland  Water  Co.,  77 
Wis.  51;  45  N.  W.  Rep.  807;  Hoar  ».  Merritt,  G2  Mich.  38G;  29  N.  W.  Rep. 
15;  Quebec  S.  S.  Co.  v.  Merchant,  133  U.  S.  375;  10  S.  Ct.  Rep.  397: 
.\nderson  v.  Oliver,  138  Pa.  St.  ISC;  20  Atl.  Rep.  881;  27  W.  N.  C.  123; 
Orimsley  r.  Ilankin.s,  4G  Fed.  Rep.  400;  Ilenshaw  v.  Pond's  Extract  Co., 
66  Hun,  t;32;  21  N.  Y.  S.  Rep.  177. 

(d)  Lake  Shore,  etc.,  Ry.  Co.  v.  Lavalley,  30  Ohio  St.  221 ;  Cowles  v. 
Richmond,  etc.,  R.  Co.,  84  N.  C.  309;  Chicago,  Milwaukee  &  St.  Paul 
U.  Co.  p.  Ross,  112  U.  S.  377;  Berea  Stone  Co.  v.  Kraft,  31  Ohio  St.  287; 
Webb  P.  Richmond  &  D.  R.  Co.,  97  N.  C.  387;  2  S.  E.  Rep.  440;  Lewis 
V.  Selfert,  116  Pa.  St.  628;  11  Atl.  Rep.  514;  Duffy  v.  Oliver,  131  Pa.  St. 
SOS;  18  Atl.  Rep.  872;  Galveston,  II.  &  S.  H.  Ry.  Co.  v.  Smith,  76  Tex. 
611;  18  8.  W.  Rep.  562;  Iledley  v.  Pinkney  [1892],  1  Q.  B.  58;  Foster  o. 
Mlaaourl  Pac.  Ry.  Co.,  115  Mo.  165;  21  S.  W.  Rep.  916;  Baltimore  &  O. 
R-  Co.  V.  Baugh,  149  U.  S.  368;  13  S.  Ct.  Rep.  914;  Fordyce  v.  Briney, 
68  Ark.  206;  24  S.  W.  Rep.  250;  Kenny  v.  Cunard  S.  S.  Co.,  55  N.  Y. 
Saper.  Ct.  558. 

Fellow-Servant. —  The  followin£»  have  been  held  to  be  fellow-servants. 
Brakeman  and  car  inspector.—  Smith  v.  Flint,  etc.,  R.  Co.,  46  Mich.  258; 
41  Am.  Rep.  161;  Mackin  v.  Boston,  etc.,  R.  Co.,  135  Mass.  201;  46 
Am.  Rep.  456;  Little  Miami  R.  Co.  v.  Fitzpatrlck,  42  Ohio  S.  318;  Bal- 
lon c.  Chicago,  etc.,  R.  Co.,  54  Wis.  259;  41  Am.  Rep.  31.  Contra, 
Condon  v.  Missouri  Pacific  R.  Co.,  78  Mo.  567;  Cooper  v.  P.  C.  &  St.  L. 
R.  Co.,  24  W.  Va.  37;  Braun  v.  Chicago,  etc.,  R.  C,  63  la.  595;  36  Am. 
j  Rep.  243;  Fay  v.  Minneapolis,  etc.,  R.  Co.,  30  Minn.  231. 

Brakemfui  and  conductor  on  same  train. —  Pease  v.  Chicago,  etc.,  R. 
Co..  61  Wis.  163;  Dow  v.  Kansas  Pacific  R.  Co.,  8  Kan.  642;  Hayes 
r>.  W(8tern  R.  Co.,  3  Cush.  270;  Smith  v.  p^lint,  etc.,  R.  Co.,  46  Mich.  258. 
See  Central  R.  Co.  v.  De  Bray,  71  Ga  406. 

Brakeman  on  one  train  and  conductor  or  engineer  on  another  train 
belonging  to  the  same  company. —  Pittsburgh,  etc.,  R.  Co.  v.  Devinney, 
17  Ohio  St.  197. 

Brakeman  and  engineer.— P.  C.  &  St.  L.  R.  Co.  v.  Ranney,  37  Ohio  St. 
666;  Missouri  Tac.  Ry.  Co.  u.  Texas  &  p.  Ry.  Co.,  31  Fed.  Rep.  527. 


180      NEGLECT    OF   DUTIES   REQUIRING   ORDINARY   CARE. 

[140]     This    is  stated  to  be  upon  the  principle  that  the 
servant  has  undertaken  the  service  subject  to  the  risk  of 


Brakeman  on  freight  train  and  engineer  on  passenger  train  of  satni- 
company. —  Louisville,  etc.,  R.  Co.  v.  Robinson,  4  Bush,  507. 

Brakeman  and  fireman. —  Kersey  v.  Kansas  City,  etc.,  R.  Co.,  79  Mo. 
362.  See  Hughes  v.  Winona,  etc.,  R.  Co.,  27  Minn.  137;  Greenwald  v. 
Marquette,  etc.,  R.  Co.,  49  Mich.  197;  Relyea  ».  Kansas  City,  etc.,  B.Co., 
112  Mo.  86;   19  S.  W.  Rep.  1116. 

Brakeman  on  one  train  using  switch  and  engineer  of  another  train. — 
Randall  v.  Baltimore,  etc.,  R.  Co.,  109  U.  S.  478. 

Brakeman  and  persons  loading  gravel  train. —  Henry  v.  Staten  Island 
R.  Co.,  81  N.  Y.  373. 

Brakeman  and  another  brakeman  together  with  conductor  of  freight 
train. —  Hayes  v.  Western  R.  Corp.,  3  Cush.  270. 

Brakeman  on  one  train  and  mechanics  in  repair  shops,  and  inspector  of 
machinery  and  rolling  stock. —  Wonder  v.  Baltimore,  etc.,  R.  Co.,  32  Md. 
418;  Besel  v.  N.  Y.,  etc.,  R.  Co.,  70  N.  Y.  171,  Contra,  Blessing  v.  Mis- 
souri, etc.,  R.  Co.,  77  Mo.  410. 

Brakeman  and  "  section  boss." —  Slattery  v.  Toledo,  etc.,  R.  Co.,  23 
Ind.  81.     Contra,  Nashville,  etc.,  R.  Co.  v.  Carroll,  6  Heisk.  347. 

Brakeman  or  engineer  and  section  or  track  men. — Connelly  v.  Minne- 
apolis E.  Ry.  Co.,  38  Minn.  80;  35  N.  W.  Rep.  582. 

Brakeman  and  switch  tender. —  Slattery  v.  Toledo,  etc.,  R.  Co.,  23  Ind. 
81;  41  Am.  Rep.  552;  Toner  v.  Chicago,  etc.,  Ry.  Co.,  69  Wis.  188;  31 N. 
W.  Rep.  104;  33  N.  W.  Rep.  433;  Gaffney  v.  New  York  &  N.  E.  R.  Co., 
16  R.  I.  456;   7  Atl.  Rep.  284. 

Brakeman  and  train  dispatcher. —  Robertson  v.  Terre  Haute,  etc.,  B. 
Co.,  78  Ind.  77.  Contra,  Phillips  v.  Chicago,  etc.,  Ry.  Co.,  64  Wis.  474; 
N.  W.  Rep.,  Dec.  12,  I885. 

Brakeman  and  workman  on  road  setting  up  and  using  derrick.— 
Holden  v.  Fitchburg  R.  Co.,  129  Mass.  268. 

Carpenter  and  man  in  charge  of  train  by  which  he  is  carried  to  his 
work. —  Seaver  v.  Boston,  etc.,  R.  Co.,  14  Gray,  466;  Vick  v.  N.  Y.,  etc., 
R.  Co.,  95  N.  Y.  2G7;  47  Am;  Rep.  36.  Contra,  O'Donnell  v.  Allegheny, 
etc.,  R,  Co.,  59  Pa.  St.  239. 

Carpenter  and  sawyer. —  Sayward  v.  Carlson,  1  Wash.  29;  23  Pac. 
Rep.  830. 

Car  repairer  and  head  brakeman  and  yardmaster. —  Beesel  v.  N.  Y., 
etc.,  R.  Co.,  70  N.  Y.  171. 

Car  repairer  and  assistant  switchman. —  Clark  v.  St.  Paul,  etc.,  E.  Co., 
28  Minn.  128, 

Car  repairer  at  particular  station  and  engineer  in  charge  of  switch 
engine  at  same  station. —  Valtez  v.  Ohio,  etc,  R.  Co.,  85  111.  500. 

Conductor  and  station    baggage  master. —  Colorado,  etc.,  K.  Co.  ». 


FELLOW-SERVANT.  181 

negligence     [lil]     ''>  l''-^    fi'llow-scrvanta  (c),  or,  hs  wo 
have  before  said,  the  law  implies  that  it  is  one  of  the  terms 


(e)  Uulclilniton  v.  Y.N.  A  II.  Uy.  Co.,  5  Ex.   3&2;per  AlUeraon,   It.;  Wilson  r. 
Man7i  in/ra. 


lUrtin,  7  Colo.  5U2;  4  W.  C.  Rep.  563;  Kerlin  v.  Chicago,  etc.,  B.  Co., 
AO  Fed.  Rep.  185. 

Conductor  and  llreman. — Slater  v.  Jewett,  85  N.  Y.  C,]  ;  39  Am. 
Bep.  «27. 

Conductor  of  a  dump  or  gravel  train  and  common  laborer.  —  O'Con- 
uell  r.  U&ltimore,  etc.,  R.  Co.,  20  Md.  212;  Ryan  v.  Cumberland,  etc.,  R. 
Co.,  28  Pa.  St.  384;  McGowan  v.  St.  Louis,  etc.,  K.  Co.,  IM  Mo.  528; 
CaMldy  r.  Maine,  etc.,  R.  Co.,  70  Me.  488;  Cumberland  Coal  Co.  v. 
Scally,  27  Md.  589;  Heine  v.  Chicago,  etc.,  R.  Co.,  58  Wis.  525.  Cunlra, 
Chicago,  etc.,  R.  Co.  v.  Baytleld,  37  Mich.  205;  Moon's  Admr.  v.  Rich- 
mond, 78  Va.  745;  Lalor  v.  Chicago,  etc.,  R.  Co.,  52  111.  401. 

Conductor  traveling  on  another  train  to  place  of  service,  and  employes 
in  charge  of  train.  — Manville  v.  Cleveland,  etc.,  R.  Co.,  11  Ohio  St.  417. 

Conductor  and  coal  miner  employed  by  mining  company  detailed  to 
work  at  repairing  brealc  In  railway.  — Cumberland  Coal  and  Iron  Co.  v. 
Scally,  27  Md.  589. 

Engineer  and  llreman.  —  Murray  v.  South  Carolina  R.  Co.,  1  McMillan, 
385;  St.  Louis,  etc.,  R.  Co.  v.  Britz,  72  111.  250;  Henry  p.  Lake  Shore, 
etc.,  R.  Co.,  49  Mich.  495;  Nashville,  etc.,  R.  Co.  v.  Handman,  13  Lea, 
4J8;  Onlf,  C.  &  S.  F.  Ry.  Co.  v.  Blohn,  73  Tex.  637;   11  S.  W.  Rep.  637. 

EDglneer  and  brakcman.  — Nashville,  etc.,  R.  Co.  v.  Wheless,  10  Lea, 
741;  43  Am.  Rep.  317;  South  Florida  R.  Co.  v.  Price,  32  Fla.  46;  13  So. 
Bep.  638;  Newport  Nevr.s  &  M.  V.  Co.  v.  Howe,  52  Fed.  Rep.  362;  3  C.  C. 
A.  121;  6  U.  8.  App.  172;  Warmington  v.  Atchison,  etc.,  R.  Co.,46  Mo. 
App.  169.  Contra,  LoulHvllie  &  N.  R.  Co.  r.  Brooks,  83  Ky.  129;  North- 
am  Pac.  R.  Co.  V.  Cavanaugh,  51  Fed.  Rep.  517;  2  C.  C.  A.  358;  10  U.  S. 
App.  197;  Norfolk  &  W.  R.  Co.  o.  Thomas,  90  Va.  205;  17  S.  K.  Rep. 
884.  In  Gray  v.  Philadelphia,  etc.,  R.  Co.,  24  Fed.  Rep.  168,  It  was  lield 
that  where  a  fireman  on  a  railroad  train  is  injured  by  a  collision  at  a 
crosaing  of  two  roads,  brought  about  by  the  concurring  negligence  of 
the  engineer  on  his  train  and  of  the  employes  of  the  other  road,  his  right 
to  recover  ilamai;e8  for  sucli  injury  from  the  otlier  road  will  not  be 
<lefeated  by  reason  of  the  negligence  of  the  engineer. 

Engineer  and  brakeman  on  different  trains.  —  Randall  v.  Baltimore, 
etc.,  R.  Co.,  100  U.  S.  478;  Pittsburgh,  etc.,  R.  Co.  v.  Devinney,  17  Ohio 
St.  197;  Baltimore  &  0.  R.  Co.  v.  Andrews,  50  Fed.  Rep.  728;  1  C.  C.  A. 
Rep.  636. 

Engineers  on  different  trains.  — Van  Avery  o.  Union  Pac.  Ry.  Co.,  35 
F^d.  Rep.  40. 


182      NEGLECT    OF   DUTIES   REQUIRING   ORDINARY    CARE. 

of  the  contract  of  [142]  service  that  the  servant  shall 
accept  the  ordinary  risks  of  the  service,  of  which  the  neg- 
liofence  of  fellow-servants  is  one. 


Engineer  and  shoveller  on  gravel  train.  — Ohio,  etc.,  R.  Co.  v.  Tin- 
dall,  13  Ind.  366. 

Engineer  and  section  hand.  —  H.  &  T.  C.  Ry.  Co.  v.  Rider,  62  Tex. 
267;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Martin  (N.  M.),  34  Pac.  Rep. 
536. 

Engineer  and  roadmaster.  —  Walker  v.  Boston,  etc.,  R.  Co.,  128 
Mass.  8. 

Engineer  and  laborers  on  gravel  train.  —  Ryan  v.  Cumberland  Valley, 
etc.,  R.  Co.,  23  Pa.  St.  384;  Parrish  v.  Pensacola  &  H.  R.  Co.,  28  Fla. 
251;  9  So.  Rep.  696;  Northern  Pac.  R.  Co.  v.  Smith,  59  Fed.  Rep.  993;  8 
C.  C.  A.  663.  Contra,  Dobbin  v.  Richmond,  etc.,  R.  Co.,  81  N.  C.  446  ;  31 
Am.  Rep.  512. 

Engineer  and  conductor.  —  Ragsdale  v.  Memphis,  etc.,  R.  Co.,  59 
Tenn.  426:  Slater  v,  Jewett,  85  N.  Y.  61;  Lasljy  v.  Canadian  Pac.  Ry. 
Co.,  83  Me.  461;  22  Atl.  Rep.  367,  Contra,  Chicago,  etc.,  R.  Co.  v.  Ross, 
112  U.  S.  377;  Coontz  v.  Missouri  Pac.  Ry.  Co.,  121  Mo.  652;  26  S.  W. 
Rep.  661. 

Engineer  and  telegraph  operator.  —  Slater  v,  Jewett,  85  N.  Y.  61;  39 
Am.  Rep.  627;  Blessing u.  St.  Louis,  etc.,  R.  Co.,  77  Mo.  410;  Monaghan 
V.  New  York,  etc.,  R.  Co.,  45  Hun,  113. 

Engineer  and  yardmaster.  — Evans  v.  Atlantic,  etc.,  R.  Co. ,62  Mo.  49. 

Engineer  and  person  employed  to  watch  ties  along  road  riding  on 
train  under  orders.— Dallas  v.  The  G.  Col.  &  S.  F.  Ry.  Co.,  61  Tex.  196. 

Engineer  in  charge  of  steam  shovel  and  workman  engaged  with  ma- 
chine.—  Thompson  v.  Chicago,  etc.,  R.  Co.,  18  Fed.  Rep.  239. 

Engineer  and  servants  of  contractor  engaged  in  furnishing  wood  to 
railroad  on  train. —  Illinois,  etc.,  R.  Co.  v.  Cox,  21  111.  20. 

Engineer  and  switch  tender. —  Farwell  •;;.  Boston,  etc.,  R.  Co.,  4  Mete. 
49;  Slattery  v.  Morgan,  35  La.  Ann.  1166;  Rutledge  v.  Missouri  Pac.  Ry. 
Co.,  123  Mo.  121;  24  S.  W.  Rep.  1053,  affirmed  in  27  S,  W.  Rep.  327; 
Naylor  v.  New  York,  etc.,  R.  Co.,  33  Fed.  Rep.  801;  Chicago,  R.  I.  &  P. 
Ry.  Co.,  V.  Touhy,  26  111.  App.  99.  But  a  yard  switchman  is  not  a  fellow- 
servant  of  a  locomotive  engineer. — Louisville  &  N.  W.  Co.  v.  Sheets  (Ky. 
App.),  13  S.  W.  Rep.  248. 

Engineer  and  track  repairer.  —  Whaalan  v.  Mad  River  Co.,  8  Ohio  St. 
249;  Ohio,  ctc,  R.  Co,  v.  Collarn,  73  Ind.  261;  38  Am.  Rep.  134;  Elling- 
ton V.  Beaver  D,  L,  Co.,  93  Ga.  53;  19  S.  E,  Rep.  21;  Van  Wickle  v. 
Manhattan  Ry.  Co.,  32  Fed.  Rep.  278. 

Contra,  Flynn  v.  Kansas  City,  etc.,  R.  Co.,  78  Mo,  195;  Schlereth  »> 
Missouri  Pac,  Ry.  Co.,  115  Mo,  87;  21  S.  W.  Rep.  1110;  19  S,  W.  Rep. 
1134. 


FKLLOW-SEKVANT.  183 

[143]  *'  Follo\v-8(TV!int8  are  those  who  serve  tho  samo 
matiter  and  are  under  his  control.     One  may  bo  under  the 

Engineer  and  car  repairer. —  Texas  &  P.  Hy.  Co.  v.  Cuini)Ston,  4  Tex. 
Civ.  App.  25;  23  S.  W.  Rep.  47. 

Engineer  and  station  a^ent  employed  at  station  whose  duties  Involve 
ooapltog  and  uncoupling  cars. —  Wilson  v.  Madison,  etc.,  R.  Co.,  18  Ind. 
»6. 

Engineer  and  station  agent. —  Brown  v.  Minneapolis,  etc.,  R.  Co.,  31 
Minn.  553. 

Fireman  and  servants  of  independent  contractor  at  work  for  company 
on  train. —  Illiuols,  etc.,  R.  Co.  v.  Cox,  21  111.  20. 

Fireman  and  roadmaster. — Walker  v.  Boston,  etc.,  R.  Co.,  128  Mass.  8. 

Fireman  and  telegraph  operator.—  Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v. 
Clark,  57  Feil.  Rep.  125;  6  C.  C.  A.  281;  approving  McKaig  ».  Northern 
Pac.  R.  Co.,  42  Fed.  Rep.  288. 

Foreman  and  laborer. —  Keystone  Bridge  Co.  v.  Newberry,  OG  Pa.  St. 
246;  42  Am.  Rep.  543;  Fnikcr  v.  St.  Piiul,  etc.,  Ry.  Co.,  32  Miun.  54; 
Willis  V.  Oregon,  etc.,  Ry.  &  Nav.  Co.,  11  Ore.  257;  The  Indiana  Car 
Co.  r.  Parker,  100  Ind.  181 ;  De  Marcho  v.  Builders'  Iron  Foundry 
(R.  I.),  28  At).  Rep.  GiU  ;  Sagroue  v.  Mobile  &  O.  R.  Co.,  07  Miss. 
592;  7  So.  Rep.  432;  Noyes  v.  Wood,  102  Cal.  389;  30  Pac.  Rep,  766; 
Gonslor  v.  M.  &  St.  L.  Ry.  Co.,  36  Minn.  385;  31  N.  W.  Rep.  515; 
Larich  r.  Moles  (R.  I.),  28  Atl.  Rep.  G61 ;  Olsen  v.  St.  P.,  M.  &  M.  Ry. 
Co.,  38  Miun,  117;  35  N.  W.  Rep.  866;  Sullivan  r.  New  York,  etc.,  R. 
Co.,  02  Conn.  209;  25  Atl.  Rep.  711;  McGinley  v.  Levering,  152  Pa.  SL 
866;  25  Atl,  Rep.  824,  Stephens  v.  Doe,  73  Cal.  20;  14  Pac.  Rep.  378. 
Contn,  Luebke  v.  Chicago,  etc.,  R.  Co.,  59  Wis.  127;  48  Am.  Rep.  483; 
Dowllngr.  Allen,  74  Mo.  13;  41  Am.  Rep.  298;  Gllmore  v.  Northern  Paci- 
flc  R.  Co.,  18  Fed.  Rep.  86;  Houser  v.  Chicago,  etc.,  Ry.  Co.,  60  la.  230; 
46  Am.  Rep.  65;  Chicago,  etc.,  R.  Co.  v.  May,  108  111.  288;  Lake  Shore, 
etc.,  R.  Co.  V.  Lavalley,  36  Ohio  St.  221;  Hannibal,  etc.,  R.  Co.  v.  Fox, 
81  Kan.  68;  Brown  v.  Sennet,  S.  C.  Cal.,  21  Rep.  450;  Zintek  v.  Stimson 
Mill  Co.,  G  Wash.  St.  178;  32  Pac.  Rep.  997;  Helen  v.  Goodwin,  92  Tenn. 
885;  21  8.  W.  Rep.  760. 

Gripman  and  track-watcher. —  Murray  v.  St.  Louis,  etc.,  Ry.  Co.,  98 
Mo.  573;   12  S.  W.  Rep.  252. 

Laborer  engaged  iu  hauling  and  those  engaged  in  blasting  rock. — 
Bogard  v.  The  Louisville,  etc.,  Co.,  100  Ind.  491. 

Labonr  drilling  lioles  in  an  iron  girder  and  another  removing  rub- 
bish.— Somer  v.  Harrison  (Pu.),  8  Atl.  Rep.  799. 

Laborer  engaged  in  getting  out  ballast  and  track  layer  who  laid  a  tem- 
porary track  on  which  laborer  was  at  work. — Sherman  v.  Rochester,  etc., 
R.  Co.,  17  N,  Y.  153, 

Laborer  upon  a  construction  train  and  the  engineer  and  conductor. — 
Miller  c.  Ohio  &  M.  Ry.  Co.,  24  111.  App.  320. 


184   NEGLECT  OF  DUTIES  REQUIRING  ORDINARY  CAKE. 

control     [144]     of  the  other  (cZ),   but  if   they  are  both 
under  the  master's  control  they  are  fellow-servants  (e). 


(d)  Searle  v.  Lindsay,  H  C.  B.  N.  S. 
429;  Fcltham  v.  England,  L.  R.  2  Q.  B. 
33;  36  L.  J.  Q.  B.  11.  It  seems  that  In 
Kentucky,  Ohio,  and  Georgia  the  decis- 
ions have  been  to  the  contrary  effect, 
and  it  has  been  held  that  If  a  servant  is 
so  under  the  control  of  another  servant 
that  he  is  unable  to  take  precautions 
against  that  servant's  negligence,  they 
are  not  fellow -servants:  Shearman,  s. 
100,  note  4,  citing  Cleveland  Ry.  Co.  v. 
Keary,  3  Ohio  St.  201 ;  Little  Miami  Ry. 
Co.  V.  Stevens,  20  Ohio,  415;  Cooper  v- 
Mullins,  30  Ga.  116,  and  there  would 
seem  to  be  very  great  justice  in  this 
view.  Somewhat  the  same  view  seems 
to  have  been  taken  in  Scotland :  M'Auley 
V.  Brow)ilie,  22  Dunlop,  975;  Somerville 
V.  Gray,  1  M'Pherson,  768;  but  such  is 
clearly  not  the  law  in  England ;  see  "Wil- 
son V.  Merry,  supra;  Feltham  v.  England, 
supra;  [ante,  p.  179]. 

(e)  The  following  persons  have  been 
held  to  be  fellow-servants: — Wilson  t: 
Merry,  L.  R.  1  S.  &  D.  326  (a  servant  who 
has  left  the  service,  and  has  during  serv- 
ice done  a  negligent  act,  is  fellow-ser- 
vant to  one  who  comes  into  the  service 
afterwards) ;  Feltham  v.  England,  Law 
Rep.  2  Q.  B.  32;  36  L.  J.  Q.  B.  14  (work- 
man under  control  of  foreman);  Searle 
V.  Lindsay.  11  C.  B.  N.  S.  129  (third 
engineer  under  control  of  first  engineer 
in  ship) ;  Sherman  v.  Rochester  Ry.  Co., 
17  X.  Y.  153  (hrakeman  and  engineer  of 
train) ;  Wiggett  v.  Fox,  11  Exch.  832 
(workman  under  subcontractor  engaged 
In  doing  by  piecework  particular  por- 
tions of  common  work,  viz.,  building 
towerat  Crystal  Palace) ;  Charles  r.  Tay- 
lor, L.  R  2  C.  P.  D.  492  (man  unloading 
coals  from  barge,  and  man  lifting 
barrels) ;  Wright  v.  London  &  N.  AV.  Ry. 
Co.,  4.j  L.  J.  Q.  B.  570;  L.  R.  1  Q.  B.  D.  252 
(unloading  a  heifer);  Uowells  v.  Lan- 
dore   Steel  Co.,  L.  R.  10  Q.  B,  62 ;  51  L.  J. 


Q.  B.  25  (certificated  manager  of  mine 
and  miner) ;  Lovell  v.  Howell,  supra 
(waterman  and  servants  at  granary  with 
sack  on  a  crane);  Conway  v.  Belfast  & 
Northern  Ry.  Co..  11  Ir.  R.  C.  L.  346 
(general  traffic  manager  and  milesman) ; 
Lovegrove  v.  London,  Brighton  &S.  C. 
Ry.,  16  C.  B.  N.  S.  669;  33  L.  J.  C  P.  329 
(laborer  filling  trucks  with  ballast  and 
platelayers);  Gallagher  r.  Piper,  I'Wd. 
(laborer  erecting  scaffolding  and  build- 
er's foreman).  The  following  persons 
have  been  held  not  to  be  fellow-serv- 
ants:—Fletcher  V.  Peto,  3  F.  &  F.  368 
(servant  and  contractor;  plaintiff  con- 
tractor to  carry  guano,  servants  to  pile  it 
at  ordinary  wages);  Abraham  v.  Rey- 
nolds, 5  H.  &N.  113  (plaintiff,  servant  of 
carter,  to  take  bales  from  defendant's 
warehouse;  defendant's  servants  let 
bale  fall;  parties  having  a  common 
object  but  differentlnterests) ;  Sawyer  r. 
Rutland  Ry.  Co.,27  Verm.  370;  Smith  ». 
N.  Y.  &  Harlem  Ry.  Co.,  19  N.  Y.  127 
(contract  between  two  companies  for 
joint  use  of  lln^  —  servants  not  fellow- 
servants)  ;  Warburton  v.  Gt.  Western 
Ry.  Co.,  L.  R.  2  Exch.  30 ;  36  L.  J.  Ex.  9 
(porter  of  one  company  and  engine- 
driver  of  another ;  station  used  in  com- 
mon; held,  not  in  course  of  common 
employment  or  operation  under  the 
same  master);  Grahams.  North -Eastern 
Ry.  Co.,  18  C.  B.  N.  S.  229  (signalman  of 
one  company  and  driver  of  another): 
Swainson  v.  North-Eastern  Ry  Co.,  17  L. 
J.  372;  L.  R.  3  Ex.  Div.  341  (signalman 
of  one  company  and  driver  of  another); 
Murphy  v.  Smith,  19  C.  B.  N.  S.  (boy 
directed  by  person  to  stir  explosive  sub- 
stance; question  whether  such  person 
was  "vice -principal"  or  fellow-serv- 
ant; held,  no  evidence  of  being  vice- 
principal) ;  Paterson  v.  Wallace,  1  Macq. 
H.  L.  718  (agent  in  charge  of  mine). 


Laborer  oa  wood  traia  and  section  foreman  who  took  up  rail. — 
Drymala  v.  Thompson,  2G  Minn.  40. 

Laborer  going  on  train  to  work  and  signal  man. —  Seaver  v.  Boston, 
etc.,  R.  Co.,  14  Gray,  4G(J;  Vick  v.  N.  Y.,  etc.,  R.  Co.,  95  N.  Y.  267;  47 


FELLOW-8EUVANT.  185 

[145]  A  voluiitcor  a.ssistiinl  is  :i  fclI()w->er\Miit, 
although    tlio    lUiirftor  would  not  bo  liable  to  thinJ  parliuH 

Am.  Rep.  30.  Contra,  O'Donnell  v.  Allegheny,  etc,  li.  Co.,  51*  Pa.  St. 
889.    See  Avoll  v.  Uailroad  Co.,  Md.  Ct.  App.,  ID  Hi-p.  494. 

Master  and  mate. —  Mathews  u.  Ca8e,()l  Wis.  4'Jl;  Cauifl  o.  Blanchard 
Nav.  Co.,  CC  Mich.  638;  33  N.  W.  Uep.  744. 

Master  of  1  lighter  aud  oueo[  crew. — Johnson  v.  Boston  Tow  Boat  Co., 
135  Ma.HS.  209. 

Mate  and  sailor. —  Olson  v.  Clyde,  32  Hun,  426.  Contra,  Daub  v. 
Northern  Puc.  U.  Co.,  18  Fed.  Bcp,  625;  Benson  t7.  Goodwin,  147  Mass. 
287;   17  N.  E.  Uep,  617. 

Mechanic  in  shops  and  boiler  maker. —  Murphy  o.  Boston,  etc.,  li.  Co., 
88  N.  Y.  14t;.    See  Fuller  v.  Jewett,  80  N.  Y.  40. 

Ruadina<jter  and  common  laborer. —  Brown  v.  Winona,  etc.,  R.  Co.,  27 
Minn.  I'i2;  38  .-Vm.  Kep.  285;  Lawler  v.  Androscopgiu,  etc.,  It.  Co.,  02 
Mv.  403;  10  Am.  Kep.  492;  contra,  Atchison,  etc.,  li.  Co.  v.  Moore,  31 
Kan.  i;»7. 

lioadman  in  mine  and  miner. —  Troyhear  v.  Lower  Vein  Coal  Co.,  G2 
la.  j70. 

Section  hand  and  roadmaster  engaged  in  raising  wrecked  freight 
cars.—  Brown  r.  Winona,  etc.,  II.  Co.,  27  Minn.  162. 

Section  men  and  switchmen. —  Cincinnati,  N.  O.  &  T.  P.  liy.  Co.  v. 
.Mealer,  60  Fed.  Kep.  725;   1  C.  C.  A.  633. 

Section  man  and  the  "  boss  "  of  a  ♦'  section  gang."  —  Clarke  v.  Penu- 
-sylvanla  Co.,  132  Ind.  199;  31  N.  E.  Rip.  808. 

Stevedore  and  boatswain. —  The  Furnessia,  30  Fed.  Rep.  878. 

Switchman  and  comluctor.  —  Wilson  v.  Madison,  etc.,  R.  Co.,  81  Ind- 
226. 

Switchman  ordered  to  ride  on  engine  and  engineer.  —  Smith  v.  Mem- 
phis, etc.,  K.  Co.,  18  Fed.  Kep.  304. 

Track  repairer  and  foreman  of  gang.  —  Weger  v.  Pennsylvania,  etc., 
R.  Co.,  55  Pa.  St.  400. 

Track  repairer  and  laborer  on  train.  —  Brick  v.  Rochester,  etc.,  R. 
Co.,  98  N.  Y.  211. 

Track  repairer  and  llreman  or  engineer  of  passing  train.  —  Whaalan  v. 
Mad  River,  etc.,  Co.,  8  Ohio  St.  249;  Ohio,  etc.,  R.  Co.  v.  Collarn,  73  lud. 
201;  38  Am,  Ri-p,  134;  Pennsylvania  R.  Co.  v.  Wachtcr,  00  Md.  395; 
Collins  V.  St,  Paul,  etc.,  li.  Co.,  30  Minn.  31;  contra,  Chicago,  etc.,  R. 
Co.  V.  Moranda,  93  111.  302. 

Track  iu^poctoraud  servants  of  company  in  charge  of  passing  trains. — 
Coon  V.  Syracuse,  eto,,  R.  Co.,  6  N.  Y.  492. 

Track  Inspector  and  engineer. —  Lovejoy  w.  Boston,  etc.,  R.  Co.,  125 
I.  79;  28  Am,  Rt-p.  200. 

Trackman  and  trainmen.  —  Schaible  v.  Lake  Shore  &  M.  S.  R.  Co.,  97 
Mich.  818;   50  N.  W.  Rep.  505. 


186      NEGLECT    OF   DUTIES    REQUIRING    ORDINARY    CARE. 

for  his  negli-     [146]     gence  as  a  servant  {f),  but  a  mere 
passer-by   asked    to  help  by  workmen  is  not  a  volunteer 

(/)  Potter  V.  Faulkner,  1  B.  &  S,  100;  Degg  v.  M.  Ry.  Co.,  1  H.  &  N.  773;  [post, 
p.  189]. 

Trainmen  and  engine-wiper.  —  Ewald  v.  Chicago  &  N.  W.  Ry.  Co., 
70  Wis.  420;  36  N.  W.  Rep.  12,  591. 

Tardmaster  and  assistant  engaged  in  coupling  cars.  —  McCosker  v. 
Long  Island  R.  Co.,  84  N.  Y.  77. 

Who  are  not  Fellow -servants. —  In  addition  to  the  cases  cited,  a  com- 
mon hand  employed  in  a  gang  of  men  at  an  employment  different  from 
the  use  to  which  a  switching  engine  is  employed  is  not  a  fellow-servant 
with  the  engineer  of  that  engine,  and  the  company  is  liable  for  any  in- 
jury suffered  by  the  hand  from  the  negligence  of  the  engineer.  —  Gar- 
rahytj.  Kansas  City,  etc.,  R.  Co.,  25  Fed.  Rep.  258. 

Brakeman  and  road-master.  —  The  Atchison,  etc.,  R.  Co.  v.  Moore, 31 
Kan.  197. 

Brakeman  and  track  repairers.  — Torian  v.  Hichmond  &  A.  R.  Co.,  84 
Va.  192;  4  S.  E.  Rep,  339. 

Brakeman  and  statioa  agent  or  yardmaster.  — Atchison,  T.  &  S.  F.  R. 
Co.  V.  Seeley,  54  Kan.  21;  37  Pac.  Rep.  104. 

Carpenter  and  station  agent.  — Palmer  v,  Utah  &  N.  Ry.  Co.,  2  Idaho, 
290;   13  Pac.  Rep.  425. 

Car  inspector  and  car-coupler.  — Tierney  v.  Minneapolis,  etc.,  Ry.  Co., 
33  Minn.  311;  24  Am.  Law  Reg.  661;  Dewey  v.  Detroit,  etc.,  Ry.  Co.,  97 
Mich.  329;  56  N.  W.  Rep.  756;  Potter  v.  New  York,  etc.,R.  Co.,  136  N.  Y. 
77;  32  N.  E.  Rep.  603;  St.  Louis,  A.  &  T.  Ry.  Co.  v.  Putnam,  1  Tex.  Civ. 
App.  142;  20  S.  "W.  Rep.  1002;  Carpenter  v.  Mexican  Nat.  R.  Co.,  39  Fed. 
Rep.  315.  And  brakeman.  — Daniels  v.  Union  P.  Ry.  Co.,  6  Utah,  357; 
23  Pac.  Rep.  762;  Morton  v.  Detroit,  etc.,  R.  Co.,  81  Mich.  423;  46  N. 
W.  Rep.  111. 

Car  repairer  and  foreman, —  Hannibal,  etc.,  R.  Co.  v.  Fox,  31  Kan.  686; 
Luebke  v.  Chicago,  etc.,  R.  Co.,  59  Wis.  127. 

Conductors  and  persons  employed  to  run  train. —  Chicago,  etc.,  R. 
Co.  V.  Ross,  112  U.  S.  377. 

Conductor  and  car  inspector. —  Ransier  v.  Minneapolis,  etc.,  Ry. 
Co.,  31  Minn.  331. 

Conductor  and  brakeman  of  different  trains. —  Zeigler  ??.  Danbury, 
etc.,  R.  Co.,  52  Conn.  543;  21  Rep.  201.  Contra^  Becker  v.  Baltimore  & 
0.  R.  Co.,  57  Fed.  Rep.  188. 

Conductor  and  telegraph  operator. —  East  Tenn.,  Va.  &  G.  R.  Co.  •• 
De  Armand,  2  Pick.  (Tenn.),  73;  5  S.  W.  Rep.  600. 

Conductor  of  gravel  train  and  gang  of  men  under  his  immediate  con- 
trol.—Burlington,  etc.,  R.  Co.  V.  Crockett,  19  Neb.  138;  26  N.  W.  Rep. 
921. 


MA8T1:K    AM)    sKUVAM" —  VOLLNTEEIl.  187 

assistnnt  (.v),   nor  is  ;i  person  who  perfoiiiis  a  pari   of  a 
contract  or  «liity  wlii<li    another  is  bountl  to  perform  by 

(if)  CloTeland  r.  Splor,  16  C.  B.  N.  8.  399. 


Employes  of  two  railroad  companius  having  running  connections  ovur 

■iame  roatJ.— riiiilips  v.  Chlbago,  etc.,  R.  Co.,  (14  Wis.  475;  2r,  N.  W. 

.  544;  Contnil  U.  of  N.  J.  v.  Stoermcr,  51  Fed.  Rep.  518;   2  C.  C.  A. 

1  U.  S.  App.  L'7i;;  Texas  &  P.  H.  Co.r.  Eiiston,  2  Tex.  Civ.  App. 

,  21  S.  W.  Hep.  575. 

EDglueer  and  llreman. —  Riigsdale  v.  Northern  Pac.  R.  Co.,  42  Fed. 
Rep.  383;   Sullivan  v.  Tioga  R.  Co.,  112  N.  Y.  «4:; ;  20  N.  E.  Rep.  5G9. 

Eogineer  or  conductor  and  bridge  watchman. —  Piite  v.  Chicago  &  A. 
B.  Co.,  4  1  Fed.  Rep.  95. 

Servants  of  different  employers. —  Conlan  v.  New  York,  etc.,  R.  Co., 

■  \'.  Y.  S.  Rep.  (;59;  Robertson  v.  Boston  &  A.  R.  Co.,  160  Mass.  I'Jl; 

^.  E.  Rep.  775;  Alton  Lime  &  Cement  Co.  v.  Calvey,  47  111.  App.  343; 

Uoagan  r.  Casey,  100  Mass.  374;  3G  N.  E.  Rep.  58;  Morgan  v.  Smith,  16!» 

-Mass.  570;  35  N.  E.  Rep.  101. 

Engineer  and  master  mechanic. —  Fuller  w.  Jewett,  80  N.  Y.  40. 

Engineer  of  switch  engine  and  common  hand  engaged  in  employment 
different  from  use  of  switching  engine. —  Garrahy  v.  Kansas  City,  etc., 
K.  Co.,  25  Fed.  Rep.  258. 

Engineer  and  section  boss. —  St.  Louis  &  S.  F.  Ry.  Co.  r.  Weaver,  35 
Kan.  412;   11  Pac.  Rep.  408. 

Engineer  and  general  manager. —  Krogg  r.  Atlantic  &  W.  P.  R.  Co.,  77 
Os.  202. 

Fireman,  bridge  builder  and  road-master. —  Davis  u.  Central  Vt.  R.  R. 
Co.,  55  Vt.  84;  45  Am.  Hep.  o'.tO. 

Fireman  and  train  dispatcher. —  Hankins  i'.  New  York,  etc.,  R.  Co., 
65  Hun,  51 ;  8  N.  Y.  S.  Rep.  272. 

Foreman  and  laborer. —  Brown  v.  Sennet,  68  Cal.  225;  21  Rep. 
450;  Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Peters,  7  Tex.  Civ.  App.  78;  25  S.  W. 
Rep.  1077;  87  Tex.  222;  27  S.  W.  Rep.  257;  Wabash,  St.  L.  &  P.  Ry.  Co.  v. 
Hawk,  121  111.  2.59;  12  N.  E.  Rep.  253;  Cheeney  v.  Ocean  S.  S.  Co.,  121 
Ga.  259;  19  S.  E.  Rep.  33. 

Mail  agent  and  railroad  employe. —  Houston,  etc.,  R.  Co.  v.  Hampton, 
04  Tex.  427  ;  1  Tex.  Ct.  Rep.  337;  Seybolt  v.  R.  Co.,  95  N.  Y.  562;  contra, 
K,  Co.  r.  Price,  96  Pa.  St.  256. 

In  this  case  (Houston,  etc.,  R.  Co.  r.  Hampton,  04  Tex.  427;  1  Tex.  Ct. 
Kep.  3.37)  the  court  say:  "  In  Pennsylvania  these  mail  agents  are  placed 
upon  the  sane  footing  of  employes;  but  this  is  by  virtue  of  an  act  of  the 
Legislature  of  that  State.  The  case  of  Railroad  Co.  v.  Price  (96  Pa.  St. 
256)  Is  directly  In  point.  In  that  case  the  mail  agent  on  the  train  was  killed 
hy  a  collision,  and  the  suit  was  brought  by  his  widow.  It  was  held  .xhe 
could  not  recover.    The  court,  however,  rests  its  decision  on  the  statute. 


188   NEGLECT  OF  DUTIES  REQUIRtNa  ORDINARY  CARE. 

the  permissioa  of  the  person  who  would  otherwise  hwe 
to  do  it  {h). 

(h)  Wright  V.  L.  &  N.  W.  Ey.  Co.,  1  Q.  B.  D.  252;  Holmes  v.  N.  E.  Ry.  Co.,  L.  R. 
Ex.  123. 

The  court  say :  *  The  effect  of  the  act  of  Congress  is  to  make  his  posi- 
tion on  the  car  a  lawful  one.  Being  lawfully  on  the  train  a  recovery 
might  possibly  have  been  had  for  his  death  upon  the  duty  to  carry 
safely.—  Collett  v.  Railway  Co.,  16  Q.  B.  984,  and  Nolton  v.  R.  Co.,  15 
N.  Y.  444,  go  to  this  extent.  But  here  the  act  of  1868  comes  in  and 
declares  that  persons  employed  upon  the  road  shall  have  only  the  rights 
of  employes  of  the  company.'  The  same  case  is  published  in  I  Am.  and 
Eng.  Railway  Cases,  p.  236.  In  a  note  on  page  239  the  editor  says :  'The 
question  in  the  present  case  was  res  integra.  The  authorities  cited  and 
relied  on  by  the  court  below  for  holding  the  plaintiff's  decedent  a  passen- 
ger were:  Collett  v.  R.  Co.,  16  Q.  B.  984;  Nolton  v.  E.  Co.,  15  N.  Y. 
444;  Yeomans  v.  S.  Nav.  Co.,  44  Cal.  71;  Blair  v.  Railroad  Co.,  66  N.  Y. 
313;  Hammon  v.  Railroad  Co.,  6  Rich.  L.  130,  and  Penn.  Railroad  Co.  v. 
Henderson,  1  Smith,  315.  These  cases  may  be  admitted  to  establish  tlie 
fact  that,  in  the  absence  of  the  act  of  Assembly,  the  plaintiff  would  have 
been  entitled  to  recover.  They  establish,  however,  no  more.  In  none 
of  them  was  it  specifically  decided  that  such  a  person  as  plaintiff's  dece- 
dent was  a  passenger  as  distinguished  from  a  person  engaged  or  employed 
on  or  about  the  road  *  *  *  or  on  or  about  any  train  or  car  *  ♦  • 
thereon.'  In  the  subsequent  case  of  Seybolt  v.  Railroad  Co.  (95  N.  Y. 
562),  it  was  held  that  a  railroad  corporation  owes  the  same  degree  of  care 
to  mail  agents  riding  in  postal  cars  in  charge  of  the  mails  as  they  do  to 
other  passengers.  The  court,  in  commenting  upon  the  case  of  Price, 
quoted  above,  use  this  language:  '  The  opinion  in  the  case  of  R.  R.  Co. 
V.  Price  not  only  does  not  conflict  with  the  doctrine  of  these  cases,  but 
cites  with  approval  the  Nolton  case.'  The  question  in  that  case  was  upon 
the  construction  to  be  given  to  the  word  '  passenger,'  as  used  in  the  act 
of  April  4,  1868,  of  the  laws  of  Pennsylvania,  and  it  was  held  from  the 
act  that  the  Legislature  intended  to  exclude  pK)stal  agents  from  the  class 
therein  designated  as  passengers  *  *  *  ^  Whatever  may  be  the 
precise  status  of  a  postal  clerk  on  a  railroad  train,  we  think  it  may  be 
fairly  concluded  that  he  would  be  entitled  to  recover  of  the  company  foi 
injuries  resulting  from  the  negligence  of  its  employes." 

Master  mechanic  and  plumber  employed  in  shops  ordered  to  assist  In 
getting  locomotive  to  round-house, —  Douglas  v.  Texas,  etc.,  R.  Co.,  63 
Tex.  664. 

Mining  captain  and  miners. —  Ryan  v.  Bagaley,  50  Mich.  179;  46  Am. 
Rep.  35. 

Night  watcher  and  foreman  of  night  crew. —  Chicago,  etc.,  R.  Co.  »• 
Geary,  110  111.  383. 


MASTER  AND  SEUVANT —  VOLUNTEEE.        189 

Sometinieti,  aa  uj>pe;irs  IVoin  aoine  of  the  cases  cited 
infra  (/),  the  servants,  altliougli   for  .sotnc  purposes  they 

I)  Beo  caaea  In  nolo  (e)  and  WlgROtt  Oo..  1  C.  P.  U.  660;  2  C.  1'.  I).  2U3;  [pott 
w.  Wox,  nolo  It);  Rourke  v.  Wbito  Mobs      p.  190j. 

Section  maiJler  of  track  laying  force  and  engineer  of  locoumtive 
angtnu.— C&lvo  r.  liailroad  Co.,  23  S.  C.  62f'.;  21  Hep.  473;  Sullivan  v. 
Missouri  Pac,  liy.  Co.,  1)7  Mo.  113;   10  S.  W.  Itep.  852. 

Section  man  and  llreman. —  Union  Pac.  Ey.  Co.  v.  Erickeon,  41  Neb.  1 ; 
69  M.  W.  Itep.  347. 

Section  man  and  conductor  or  signal  operator. —  Ilaney  v.  Pittsburgh, 
etc.,  Ky,  Co.,  3S  W.  Va.  670;  18  S.  E.  Kep.  748. 

Track  repairer  and  switchman, —  Hall  v.  Missouri  Pacific  Ry.  Co.,  74 
Mo.  208;  Louisville  &  N.  li.  Co.  v.  Ward,  Gl  Fed.  Kep.  927. 

Track  repairer  and  stock  and  fuel  agent. —  Texas  and  Pac.  R.  Co.  v. 
Kirk,  C2  Tex.  227. 

Trackmen  and  those  in  charge  of  trains. —  Howard  v.  Delaware  &  H. 
C.  Co.,  40  Fed.  Kep.  195.  And  train  dispatcher. —  McChesney  v.  Panama 
R.  Co.,  C6  Hun,  627;  21  N.  Y.  S.  Rep.  207. 

(/)  Everhart  v.  Terre  Haute,  etc.,  R.  Co.,  78  Ind.  292;  41  Am.  Rep. 
567;  Osborne  v.  Knox,  etc  .,  R.  Co.,  G8  Me.  49;  28  Am.  Rep.  IG;  May  ton 
r.  T.  &  P.  K.  Co.,  C3  Tex.  77;  Honor  r.  Albrighton,  93  Pa.  St.  475;  Texas 
k  N.  O.  Ry.  Co.  V.  Skinner,  4  Tex.  Civ.  App,  GGl ;  23  S.  W.  Rep.  1001 ; 
Bonner  v.  Bryant,  79  Tex.  540;  15  S.  W.  Rep.  491;  Billows  v.  Moors,  1G2 
MaiUH.  42;  37  N.  E.  Kep.  750.     See  Webb's  Pollock  on  Torts,  p.  126. 

Where  an  employe  of  a  railroad  company  engaged  in  repairing  a 
freight  car,  called  upon  his  son,  a  minor,  not  eleven  years  of  age,  to  render 
him  assistance,  and  the  son  while  so  assisting,  without  any  negligence 
on  bid  part,  was  injured  through  the  negligence  of  the  agents  of  another 
railroad,  the  latter  company  was  held  liable  in  an  action  by  the  son  for  dam- 
ages.—Pennsylvania  K.  Co.  u.  Gallagher,  40  Ohio  St.  G37. 

A  pajjsenger  on  a  street  car  assisting  a  driver  at  his  request  in  push- 
ing back  a  car  which  went  beyond  a  side  track,  is  not  a  volunteer  nor 
(eilow-servant.— Mclntire  St.  Ry.  Co.  v.  Bolton,  43  Ohio  St.  221. 

Where  a  passenger  went  to  assist  In  getting  his  trunk  out  of  a  baggage 
car  and  was  negligently  killed  while  so  doing.  It  was  held  an  action  could 
l>e  nuilnlalned  therefor  against  the  company. —  Orman  v.  Hayes,  GO  Tex. 

leo. 

A.,  who  was  not  an  employe  of  defendant  railroad  company,  was  re- 
quested by  a  watchman  to  go  up  the  track  to  a  bridge  and  notify  the 
conductor  of  an  approaching  train  that  there  was  a  broken  rail  on  the 
track,  and  being  anxious  to  prevent  loss  of  life,  A.  did  as  was  bid,  and 
^lgnaled  the  train  to  stop  as  directed.  The  conductor  stopped  his  train, 
but  started  on  again,  and  while  the  cars  were  running  at  about  four 
miles  an  hour  A.,  fearing  that  his  signal  had  not  been  understood,  at- 


190       NEGLECT   OF   DUTIES   REQUIRING   ORDINARY   CARE. 

are  serving  the  same  master,  yet  have  different  masters  in 
other  respects. 

tempted  to  get  on  the  train  and  speak  to  the  conductor,  when  he  was 
thrown  and  injured.  Held,  that  the  company  could  not  be  held  guilty 
of  negligence;  that  A.  was  himself  guilty  of  gross  contributory  negli- 
gence, and  was  not  entitled  to  recover  for  the  injuries  received.—  Blair 
V.  Grand  Rapids  &  I.  R.  Co.  Opinion  by  Sherwood,  J.  Decided  Feb. 
17,  1886;  33  Alb.  L.  J.  278  (abstract). 

{i)  As  employes  of  independent  contractors  who  are  held  not  to  be 
fellow-servants  of  the  employes  of  the  person  engaging  the  contractor.— 
Devlin  v.  Smith,  80  N.  Y.  470;  42  Am.  Rep.  311 ;  Coggin  v.  Central,  etc., 
R.  Co.,  62  Ga.  685;  35  Am.  Rep.  132;  St.  Louis,  F.  S.  &  W.  R.  Co. ». 
Willis,  38  Kan.  330;  16  Pac.  Rep.  728;  McLaughlin  v.  New  York  L.  & 
T.  Co.,  27  N.  Y.  S.  Rep.  248;  7  Misc.  Rep.  119;  Bible  v.  Norfolk  &  W.  R. 
Co  ,  87  Va.  711;  14  S.  E.  Rep.  163;  Welsh  v.  Parrish,  148  Pa.  St.  599; 
24  Atl.  Rep.  86;  Piette  v.  Bavarian  Brewing  Co.,  91  Mich.  605;  52  N.  W. 
Rep.  152;  Harris  u.  McNamara,  (Alabama),  12  So.  Rep.  103;  Whitneyc. 
Clifford,  46  Wis.  138;  49  N.  W.  Rep.  835. 

In  the  case  of  foreman  and  laborer  we  have  seen  that  the  authorities 
are  divided  as  to  whether  they  are  or  are  not  fellow-servants  of  each 
other. 

In  Ewan  v.  Lippincott  (47  N.  J.  L.  192),  the  defendant  owned  a  saw 
mill,  and  gave  an  order  to  D.  &  W.,  master  machinists,  to  make  some 
alterations  in  the  gearing  of  the  water-wheel  of  his  mill.  D.  &  W. 
sent  the  plaintiff  and  another  workman  to  do  the  work.  It  was  under- 
stood between  these  workmen  and  the  defendant  that  the  mill  would  run 
at  such  times  as  they  were  not  actually  at  work  upon  the  wheel.  While 
they  were  at  work  upon  the  wheel  the  engineer  of  the  defendant  negli- 
gently started  the  wheel,  injuring  the  plaintiff.  It  was  held  that  plaintiff 
was  a  servant  of  the  defendant,  engaged  in  a  common  employ  with  toe 
engineer. 

(Ji)  It  has  been  held  that  the  power  to  employ  and  discharge  servants 
is  a  test  as  to  whether  an  employe  is  a  vice-principal  or  not. —  Stoddard 
V.  St.  Louis,  etc.,  R.  Co.,  65  Mo,  514;  Walker  v.  Bowling,  22  Ala.  291; 
Wilson  w.  Williamantic,  etc.,  Co.,  50  Conn.  433;  47  Am.  Rep.  653;  Tyson 
V.  North  and  South  Ala.  R.  Co.,  61  Ala.  554;  Beesom  v.  Green  Mountain 
Gold  Mining  Co.,  57  Cal.  20;  Chicago  Anderson  Pressed  Brick  Co.  v. 
Sobkowiak,  148  111.  673;  36  N.  E.  Rep.  572;  Stevens  ■??.  San  Francisco  & 
N.  P.  R.  Co.,  100  Cal.  554;  35  Pac.  Rep,  692;  Ft.  Smith  Oil  Co.  v.  Slover, 
58  Ark.  168;  24  S.  W.  Rep.  106;  Patton  v.  Western  N.  C.  R.  Co.,  96  N. 
C.  455;  1  S.  E.  Eep.  863;  McElligott  v.  Randolph,  61  Conn.  157;  22  AU. 
Rep.  1044. 

"The  true  test  is  whether  the  person  in  question  is  employed  to  do 
any  of  the  duties  of  the  master." —  Gunter  v.  Graniteville,  18  S.  C,  362; 
44  Am.  Rep.  573. 


MA8TEU    AM)    M:U\  ANT FKLLOW-SKUVANT.  l!"! 

The    law  docs  not    permit  a  master  so   to  (klcirule  liis 
authority  to  another  as  to  relievo  himself  of  :ili   liability  for 

A  rule  "  most  consonant  with  justlco  and  right  reason." —  Beach  on 
Contributory  Neull-Jtouce,  p.  334. 

In  the  note  to  Farmer  v.  Central  la.  Hy.  Co.  ((57  Iowa,  130;  24  N.  \V.  Jiep. 
901),  It  Is  said:  "The  weight  of  authority,  at  least  In  the  more  recent 
ca.<KJ9,  Is  to  the  effect  that  no  matter  whether  the  foreman  or  superior  ser- 
vant Is  vested  with  '  executive  powers  '  or  not.  If  an  Inferior  employe  Is 
rcqalrcd  to  obey  the  directions  of  such  superior  servant  or  foreman  In 
i-h»rj»c,  he  l-i  not  a  fellow-workman  within  the  rule,  and  the  common 
-'tr  will  be  liable  In  damages  for  any  negligence  on  the  part  of  such 
ilor  servant  or  foreman  iu  charge,  which  results  In  Injury  to  an 
laierior  servant  or  emi>loye;  and  particularly  while  attempting  to  per- 
form an  act  lilrected  by  such  foreman  or  superior  servant. —  Dowling  t>. 
Allen,  74  Mo.  13.  It  may  be  laid  down  as  a  general  rule  that  a  master  is 
liable  for  all  Injuries  caused  by  the  negligence  of  a  fellow-servant  when 
such  fellow-servant  is  empowered  with  superior  authority  and  may 
direct  the  inferior. —Cowles  v.  Richmond  &  D.  R.  Co.,  84  N.  C.  30'J;  Lake 
Shore  &  M.  S.  Ry.  Co.  v.  Lavalley,  30  Ohio  St.  221,"  citing  further,  Mc- 
Cs»kvT  r.  Long  Island  R.  Co.,  N.  Y.  Ct.  App.,  10  Rep.  008;  Lanlngu.  New 
York  Cent.  R.  Co.,  4'J  N.  Y.521;  Brickner  v.  N.  Y.  Cent.  R.  Co.,  Id.  072; 
Flike  r.  Boston  &  A.  R.  Co.,  53  N.  Y.  o4!»;  Maloue  v.  Hathaway,  64  N.  Y. 
5;  B«'8el  v.  N.  Y.  Cent.,  etc.,  R.  Co.,  70  N.  Y.  171;  Mullen  v.  Steamship 
Co.,  78  Pa.  St.  20;  Railway  Co.  v.  Lewis,  .33  Ohio  St.  190;  Dobbin  v. 
Rjchmond.etc,  R.  Co.,  18  N.  C.  440 ;  The  Clapsop  Chlef,7  Sawy.  274 ;  Packet 
Co.  V.  McCue,  17  Wall.  513 ;  Railroad  Co.  v.  Fort,  Id.  557 ;  Berea  Stone  Co. 
r.  Kraft,  31  Ohio  St.  2S;);  Chicago  &N.  W.  R.  Co.  v.  Moranda,  93  111.  303; 
Devany  r.  Vulcan  Iron  Works,  4  Mo.  App.  236;  Gormly  v.  Vulcan  Iron 
Works,  01  Mo.  492;  The  Chandos,  0  Sawy.  548. 

The  rule  Is  well  stated  by  Mulkey,  J.,  in  Chicago  &  Alton  R.  Co.  v. 
May,  108  111.  570:— 

•'The  mere  fact  that  one  of  a  number  of  servants  who  are  in  the  habit 

of  working  together  in  the  same  line  of  employment  for  a  common  mas- 

lur,  has  power  to  control  and  direct  the  actions  of  the  others  with  respect 

i  to  such  employment,  will  not  of  Itself  render  the  master  liable  for  the 

j  D^^llgence  of  the  governing  servants  resulting  in  an  injury  to  one  of  the 

I  others  without  regard  to  other  circumstances.     On  the  other  hand,  the 

mere  fact  that  the  servant  exercising  such  authority  sometimes  or  gen- 

'  erally  labors  with  the  others  as  a  common  hand,  will  not  of  Itsi-lf  exon- 

;  crate  the  master  from  liability  for  the  former's  negligence.  Every  case  in 

!  this  respect  must  ilepend  on  Its  own  circumstances.     If  the  negligence 

I  compl:ilned  of  consists  of  some  act  done  or  omitted  by  one  having  such 

I  authority  which  relates  to  his  duties  as  co-laborer  with  those  under  his 

I  control,  and  which  might  just  as  readily  happen  with  one  of  them  having 

I  no  such  anth')rity,  the  common  master  will  not  be  liable.     For  instance. 


192      NEGLECT   05"  DDTIES   REQUIRING  ORDINARY   CARE. 

negligence;  and  it  seems  that  it  is  the  law  in  America  that 
if  he  delegates  to  another  his  power  of  selecting  servants, 

if  the  section  boss  of  a  railroad  company,  wliile  working  with  his  squad 
of  men  on  the  company's  road,  should  negligently  strike  or  injure  one  of 
them,  causing  his  death,  the  company  would  not  be  liable;  but  when  the 
negligent  act  complained  of  arises  out  of  and  is  a  direct  result  of  the 
exercise  of  the  authority  conferred  upon  him  by  the  master  over  his 
laborers,  the  master  will  be  liable.  In  such  a  case  he  is  not  a  fellow- 
servant  of  those  under  his  charge  with  respect  to  such  power,  for  no  one 
but  himself  in  the  case  supposed  is  clothed  with  authority  to  command 
the  others.  *  *  *  in  exercising  this  power  he  does  not  stand  upon  the 
same  plane  with  those  under  his  control.  His  position  is  one  of  superi- 
ority. When  he  gives  an  order  within  the  scope  of  his  authority,  if  not 
manifestly  unreasonable  those  under  his  charge  are  bound  to  obey  under 
the  peril  of  losing  their  situations  and  such  commands  are  in  contempla- 
tion of  law  the  commands  of  the  company,  and  hence  it  is  held  respon- 
sible for  the  consequences." 

It  is  the  nature  of  the  duty  or  service  performed  by  the  employe,  and 
not  his  rank  or  authority,  which  determines  whether  he  is  a  fellow-ser- 
vant or  vice-principal  (Liudvall  v.  Woods,  41  Minn.  212 ;  42  N.  W.  Rep. 
1020)  ;  however,  an  authority  superior  to  that  of  the  co-servant  necessarily 
belongs  to  a  vice-principal,  and  if  in  the  performance  of  his  duties  this 
authority  be  negligently  exercised  or  omitted  the  master  will  be  liable 
for  the  results. —  Stearns  v.  Reidy,  33  111.  App.  246,  afllrmed  in  25  N.  E. 
Rep.  762;  Chicago  Dredging  &  Dock  Co.  v.  McMahon,  30  111.  App.  358; 
Harrison  v.  Detroit,  L.  &  N.  R.  Co.,  79  Mich.  409;  44  N.  W.  Rep.  1034; 
Denver,  S.  P.  &  P.  R.  Co.  v.  Driscoll,  12  Colo.  520;  21  Pac.  Rep.  708; 
Baldwin  v.  St.  Louis,  K.  &  N.  W.  Ry.  Co.,  75  la.  297;  39  N.  W.  Rep. 
507,  Sioux  City  &  P.  R.  Co.  v.  Smith,  22  Neb.  775;  36  N.  W.  Rep.  285; 
Lewis  V.  Seifert,  116  Pa.  628;  11  Atl.  Rep.514;  Slater  v.  Chapman,  67 
Mich.  523,  35  N.  W.  Rep.  106;  Atchison,  T.  &  S.  F.  R.  Co.  v.  McKee,  37 
Kan.  592;  15  Pac.  Rep.  484. 

As  a  conductor  of  a  railroad  train. —  Ritt  v.  Louisville  &  N.  R.  Co. 
(Kentucky),  4  S.  W.  Rep.  796;  Louisville  &  N.  R.  Co.  v.  Moore,  83  Ky. 
675;  Ragsdale  v.  Northern  Pac.  R.  Co.,  42  Fed.  Rep.  383;  Boatwrightr. 
Northeastern  R.  Co.,  25  S.  C.  128;  Coleman  v.  Wilmington,  C.  &  A.  R.  Co., 
25  S.  C.  446;  Newport  News  &  M.  V.  R.  Co.  v.  Dentzel,  (Kentucky), 
14  S.  W.  Rep,  958;  Wooden  v.  Western  New  York  &  P.  R.  Co.,  18  N.  Y.  8. 
Rep.  768;  Daniel  v.  Chesapeake  &  O.  Ry.  Co.,  36  W.  Va.  397;  15  S.  E. 
Rep.  162;  Fisher  v.  Oregon,  etc.,  Ry.  Co.,  22  Ore.  533;  30  Pac.  Rep.  426. 

Or  a  foreman.—  Criswell  v.  Pittsburgh,  C.  &  St.  L.  Ry.  Co.,  30  W.  Va. 
798;  6  S.  E.  Rep.  31;  Harty  v.  St.  Louis,  etc.,  R.  Co.,  95  Mo.  368;  8  S. 
W.  Rep.  562;  Borgman  v.  Omaha  &  St.  L.  Ry.  Co.,  41  Fed.  Rep.6G7;  Mis- 
souri Pac.  R.  Co.  V.  Williams,  75  Tex.  4;  12  S.  W.  Rep.  835;  Louisville, 
N.  A.  &  C.  Ry.  Co.  v.  Graham,  124  Ind.  89;  24  N.  E.  Rep.  668;  Trihay  t>. 


MA8TEII   AND   8EUVANT FELLOW-SERVANT.  193 

[147]     he  ouglit  still  to  bo  hold  li:il)lo  for  nc<;li<^ence  in  such 
election  (k).     But  Lord  Chelmsford,  in  delivering  judg- 

(A)  Sboannan,  bs.  102-105,  clUng  Grlzzlo  t'.  Frost,  8  F.  ft  F.  622;  [ante,  p.  101]. 


Brooklyn  Lead  Miu.  Co.,  4  Utah,  4(J8;  11  Pac.  Rep.  G12;  Banks  v.  Wabash 
W.  By.  Co.,  40  Mo.  App.  458;  Tclander  v.  Sunllu,  44  Fed.  Rep.  664;  Cox 
9.  Syenite  Granite  Co.,  39  Mo.  App.  424;  Llndvall  v.  Woods,  44  Fed.  Rep. 
865;  Davis  v.  Now  York,  etc.,  R.  Co.,  159  Mass.  532;  34  N.  E.  Rep.  1070; 
Bass  r.  Wabash  W.  Ry.  C,  112  Mo.  45;  20  S.  W.  Rep,  472;  Andreeon  v. 
Ogden  U.  Ry.  &  D.  Co.,  8  Utah,  128;  30  Pac.  Rep.  305;  Sullivan  v.  Hanni- 
bal A  St.  J.  Ry.  Co.,  107  Mo.  Cfi;  17  S.  W.  Rep.  748;  Nail  v.  Loui.svllle, 
etc.,  Ry.  Co.,  129  Ind.  2t;0;  28  N.  E.  Rop.  611;  Robertson  v.  Cornelson, 
84  Fed.  Rep.  716;  Anderson  v.  Bennett,  10  Ore.  515;  19  Pac.  Rep.  765. 

Or  a  master  mechanic. —  Krueger  u.  Louisville,  etc.,  Ry.  Co.,  Ill  Ind. 
81;  11  N.  E.  Rep.  957;  Taylor  v.  Evansville  &  T.  II.  R.  Co.,  121  Ind.  124; 
fj  N.  E.  Rep.  876. 

Or  a  roadmastcr. —  Browning  v.  Wabash  W.  Ry.  Co.,  124  Mo.  55;  24 
8.  W.  Hep.  731. 

Or  a  train  dispatcher.— Lewis  p.  Scifert,  116  Pa.  St.  628;  11  Atl.  Rep. 
814;  Lasky  v.  Canadian  Pac.  Ry.  Co.,  83  Me.  461 ;  22  Atl.  Rep.  367. 

Or  a  yardmaster.—  Lyttle  v.  Chicago  &  W.  M.  Ry.  Co.,  84  Mich.  289; 
47  N.  W.  Rep.  571. 

See  "  Who  are  not  Fellow-skrvants,"  ante,  pp.  183  et  seq. 
The  authorities  do  not  agree  npon  the  question  of  the  liability  of  the 
master  where  the  foreman  or  superintendent  is  temporarily  performing 
the  work  of  a  servant.  Some  of  the  courts  hold  that  he  remains  vice- 
I principal  (Hardy  v.  Minneapolis  &St.  L.  Ry.  Co.,  36  Fed.  Rep.  657;  Colo- 
(rado  Midland  Ry  Co.  t>.  O'Brien,  16  Colo.  219;  27  Pac.  Rep.  701;  Mal- 
icolm  r.  Fuller,  152  Mass.  160;  25  N.  E.  Rep.  83),  while  others  hold  to 
the  contrary  .—  Sweeney  v.  Gulf,  etc.,  Ry.  Co.,  84  Te.x.4o3;  19  S.  W.  Rep. 
;6M,  citing  numerous  cases.  See  McBride  v.  Union  Pac.  Ry.  Co.,  3  Wyo. 
1247;  21  Pac.  Rep.  687. 

I  In  some  of  the  States  the  liability  of  the  master  extends  to  injuries 
caused  by  the  defective  condition  of  the  machinery  or  the  road-bt-d  of  a 
railroad  company,  though  under  the  control  and  supervision  of  compe- 
|tent  employes. 

In  Minnesota  the  court  say.  In  Fay  v.  Minneapolis,  etc.,  R.  Co.,  30 
iMInn.  231:  — 

"The  duty  to  provide  safe  and  suitable  instrumentalities.  Is  one 
IWhich  it  can  not  delegate  to  the  servants,  so  as  to  be  relieved  from 
iresponaiblllty,  and  this  extends  to  the  track,  and  the  condition  of  the 
cars  and  machinery  upon,  or  in  connection  with  which  they  are  em- 
ployed."—See  also,  Madden  p.  Minneapolis,  etc.,  R.  Co.,  .■;2  Minn.  303; 
Kansler  t>.  Minneapolis,  etc.,  R.  Co.,  32  Minn.  331;  Drymal  p.  Thomp. 


194      NEGLECT    OF   DUTIES    REQUIRING   ORDINARY   CARE. 

[148]     ment  in  Wilson  v.  Merry  (?)»  said  that  to  direct  a 
jury  that  if  a  foreman  "  had  the  complete  power  of  engaging 

«#,  {I)  Wilson  V.  Merry,  L,  R.  1  S.  &  D.  326,  338. 

son,  26  Minn.  40;  Sims  v.  American  S.  B.  Co.,  56  Minn.  68;  57  N.  W. 
Eep.  322. 

In  Rhode  Island,  it  is  held  that  the  master  cannot  relieve  himself 
from  liability  for  injuries  to  servants  by  defective  machinery,  by  dele- 
gating to  another  his  obligation  to  keep  it  reasonably  safe.  —  Mulvey 
V.  R.  I.  Locomotive  Works,  14  R.  I.  204. 

In  a  New  York  case,  where  an  engineer  was  killed  by  the  explosion  of 
a  boiler  some  time  out  of  repair  and  frequently  sent  to  the  shops  for  re- 
pair,  the  court  say :  — 

"  It  is  claimed  that  the  negligence  of  the  mechanics  was  the  negligence 
of  the  co-employes  with  the  intestate  in  the  service  of  the  company  for 
which  the  defendant  company  employer  is  not  responsible.  We  are  of 
opinion  that  the  cases  of  Flike  v.  Boston,  etc.,  R.  Co.,  53  N.  Y.  549; 
Booth  V.  Id.,  73  Id.  38,  and  Mehan  v.  Syracuse,  etc.,  R.  Co.,  73  Id,  585, 
are  decisive  against  this  contention.  We  understand  the  principles  of 
these  cases  to  be  that  acts  which  the  master  as  such  is  bound  to  perform 
for  the  safety  and  protection  of  his  employes  cannot  be  delegated  so  as  to 
exonerate  the  former  from  liability  to  a  servant  who  is  injured  by  the 
omission  to  perform  the  act  or  duty,  or  by  its  negligent  performance, 
whether  the  nonfeasance  or  misfeasance,  is  that  of  a  superior  officer, 
agent  or  servant,  of  a  subordinate  or  inferior  agent  or  servant  to  whom 
the  doing  of  the  act  or  the  performance  of  the  duty  has  been  committed. 
*  *  *  The  act  or  omission  is  the  act  or  omission  of  the  master 
irrespective  of  the  grade  of  the  servant  whose  negligence  caused  the 
injury,  or  of  the  fact  whether  it  was  or  was  not  practicable  for  the  mas- 
ter to  act  personally,  or  whether  he  did  or  did  not  do  all  that  he  person- 
ally could  do  by  selecting  competent  servants,  or  otherwise,  to  secure 
the  safety  of  his  employes."— Fuller  v.  Jewett,  80  N.  Y.  46;  36  Am. 
Rep.  575. 

So  in  Cone  v.  Delaware,  L.  &  W.  R.  Co.  (81  N.  Y.  206),  where  an  engi- 
neer was  injured  by  the  sudden  starting  of  the  locomotive  which  was 
out  of  repair,  it  was  held  no  defense  that  he  could  have  so  managed  the 
engine  as  to  have  prevented  the  accident.     The  court  say: — 

"  Neither  upon  principle  nor  authority  can  it  be  held  that  the  negli- 
gence of  the  servant  in  using  imperfect  machinery,  excuses  the  principal 
from  liability  for  an  injury  which  could  not  have  happened  had  the  ma- 
chinery been  suitable  for  the  use  to  which  it  was  applied.  Had  the 
injury  resulted  solely  from  the  result  of  the  servant's  negligence,  the  case 
would  have  been  different." —  See  also  Kirkpatrick  v.  N.  Y.,  etc.,  R.  Co., 
79  N.  Y.  240.  See  distinction  noted  in  Murphy  v.  Boston,  etc.,  R.  Co., 
88  N.  Y.  146,  as  to  the  liability  for  use  and  repair. 


MASTER    AND    SEUVANT lELLOW-SKKVANT.  195 

ami     [140]     dismissing  workmon  as  he  plcasotl,  and  tin- 
ventilation    process    was  entirely  left  to  liiiii   witliout  the 

In  Texas  It  is  held  that  the  duty  of  a  railway  company  to  have  a  sound 
track  Is  one  from  which  it  cannot  excuse  itself  by  the  fact  that  some 
other  servants  of  the  company  hud  failed  to  construct  or  keep  It  In 
repair.—  Texas  vt  1'.  Ky.  Co.  c  Kirk,  (•,2  Tex,  2'.'7;  Texas  &  P.  Ry.  Co.  v. 
McAtee,  Gl  Tex.  C,[)o;  Mi.ssouri  Pac.  liy.  Co.  (».  James  (  Texas,  ),  10  S. 
W.  Kep.  332;  Missouri  Pac.  Uy.  Co.  v.  McElyea,  71  Tex.  38C;  9  S.  W. 
Rep.  313;  San  Antonio  &.  A.  P.  Uy.  Co.  t;.  Adams,  C  Tex.  Civ.  App.  102; 
24  S.  W.  Uep.  8;VJ. 

The  rule  just  slated,  as  to  the  liability  of  the  master,  prevails  in  the 
majority,  if  ni)t  all,  tlie  States. 

Ca/i/«nua.— Trask  v.  California  &  S.  K.  Co.,  G8  Cal.  90;  Burns  w.  Sen- 
nelt,  9;»  Cal.  3t;3:  33  Pac.  Hep.  010;  Sanborn  u.  Madera  F.  &  T.  Co.,  70 
Cal.  201;  II  Pac.  Uep.  710. 

Conneclicut.—  M<-Elli<?ott  v.  Randolph,  61  Conn.  157;  22  All.  Uep.  10!)4. 

ZViaware.— Stewart  r.  Philadelphia,  W.  &  B.  R.  Co.,  8  Del.  450;  17 
All.  Rep.  03i);  Foster  u.  Pusey,  (   Delaware,  ),  14  All.  Rep.  545. 

Oforfirta.— Savannah,  F.  &  W.  Ry.  Co.  v.  Goss,  80  Ga.  624;  5  S.  E. 
Rep.  777. 

///inois.— Pullman's  Palace  Car  Co.  v.  Laack,  143  111.  242;  32  N.  E. 
Rep.  --'Ho;  Sangamon  Coal  Min.  Co.  v.  Wiggerhaus,  122  111.  27'J;  13  N.  E. 
Rep.  648. 

Indiana. —  Krucger  v.  Louisville,  etc.,  Ry.  Co.,  Ill  Ind.  51;  11  N.  E. 
Rep.  957;  Pennsylvania  Co.  v.  Whitcomb,  111  Ind.  212;  12  N.  E.  R<'p.  380. 

/owa.— Blink  v.  Ilubinger,        (Iowa),    57  N.  W.  Rep.  5!i3;  Fink  v. 

Des  Moines  Ice  Co.,  84  la.  321;  51  N.  W.  Rep.  155;  Ilaworth  v.  Seevers 

Mfg.  Co.  (       Iowa,     ),51  N.  W.  Rep.  G8;  Baldwins.  St.  Louis,  etc., 

Bjr.  Co.,  72  la.  46;  33  N.  W.  Rep.  356. 

I       Kansan.— SI.  Louis  &  S.  F.  Ry.  Co.  v.  Weaver,  36  Kan.  412;   11  Pac. 

I  Rep.  408;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Seely,  54  Kan.  21;  37  Pac.  Rep. 

i  104;  Keliey  v.  Ryers,  48  Kan.  120;  29  Pac.  Rep.   144;  Missouri  Pac.  Ry. 

,  Co.  r.  Dwyer,  30  Kan.  58;  12  Pac.  Rep.  352. 

'  Mafsar hu»< ttH.—  Don&hoe  v.  Old  Colony  R.  Co.,  153  Mass.  356;  26  N. 
E.  Rep.  80S;  Kalleck  v.  Deering,  101  Mass.  46'J;  37  N.  E.  Rep.  4rj0;  Moy- 
nlhan  r.  Hills  Co.,  146  Mass.  580;  16  N.  E.  Rep.  574. 
I  lfic/iij;.j».— Brown  v.  Gilchrist,  80  Mich.  50;  45  N.  W.  Rep.  82;  Van 
Du»cn  r.  U'tellier,  78  Mich.  492;  44  N.  W.  Rep.  572;  Fox  v.  Spring  L.  I. 
Co.,  89  Mich.  397;  50  N.  W.  Rep.  872;  Morton  v.  Detroit,  etc.,  R.  Co.,  81 
Mich.  423;  40  N.  W.  Rep,  111. 

Jfi*«ourt.— Sullivan  v.  Ilannilml  &  St.  J.  Ry.  Co.,  107  Mo.  66;  17  S.  W. 
Bep.  748. 

Ifontona.— Keeleyp.  Cable  Co.,  7  Mont.  70;  14  Pac.  Rep.  633. 

New  Jersey. —  Ingebregtsen  v.  Nord  Deutscher  Lloyd  S.  Co.  (N.  J.), 
81  All,  Rep.  619. 


Z96      NEGLECT   OF   DUTIES    REQUIRING   ORDINARY   CARE. 

direction  or  control  [150]  of  the  defendants,  he  was  a 
superintendent  and  not  a  fellow-workman  with  the  de- 
ceased," would  be  a  misdirection  ;  [151]  and  Lord  Cairns 
said,  "  the  respondents  had  deleojated  no  power,  authority, 
or  duty  except  in  the  sense  in  which  a  master  who  employs 
a  skilled  workman  to  superintend  a  portion  of  his  business 
delegates  power,  authority,  and  duty  to  the  workman  for 
that  purpose  *  *  *  and  the  learned  judge  ought  not, 
as  I  think,  to  have  suggested  to  the  jury  that  this  could  be 
viewed  in  any  other  light  than  as  the  ordinary  employment 


New  TorA;.— Bernard!  v.  New  York,  etc.,  R.  Co.,  78  Hun,  454;  29  N. 
Y.  S.  Rep.  230;  Kimmer  v.  Weber,  76  Hun,  482;  27  N.  Y,  S.  Rep.  1093; 
Kuhn  V.  Delaware,  etc.,  R.  Co.,  77  Hun,  389;  28  N-  Y.  S.  Rep.  883; 
Wooden  v.  Western  N.  Y.  &  P.  R.  Co.,  16  N.  Y.  S.  Rep.  840;  Sellick  c. 
Langdon  &  Co.,  59  Hun,  627;  13  N.  Y.  S.  Rep.  858;  Kilroy  v.  Delaware 
&  H.  C.  Co.,  1  N.  Y.  S.  Rep.  779;  Bushby  v.  New  York,  etc.,  R.  Co.,  107 
N.  Y.  374;   14  N.  E.  Rep.  407. 

Pennsylvania.— Uoss  v.  Walker,  139  Pa.  St.  42;  21  Atl.  Rep.  157;  27 
W.  N.  C.  165;  Philadelphia  &  R.  R.  Co.  v.  Trainox,  137  Pa.  St.  148;  20 
Atl.  Rep.  632;  26  W.  N.  C.  441. 

South  Dakota.—  Gates  v.  Chicago,  etc.,  Ry.  Co.,  4  S.  D.  433;  57N.  W, 
Rep. 200. 

Firsrmza.— Ayers  v.  Richmond  &  D.  R.  Co.,  84  Va.  679;  6  S.  E.  Eep. 
582;  Johnson  v.  Richmond  &  A.  R.  Co.,  84  Va.  713;  5  S.  E.  Rep.  707. 

Vermont. —  Davis  v.  Central  Vermont  R.  Co.,  55  Vt.  84;  45  Am.  Rep. 
590. 

Wisconsin. —  HuUehan  v.  Green  Bay,  etc.,  R.  Co.,  68  Wis.  528;  32  N. 
W.  Rep.  529. 

And  the  same  principle  has  been  announced  by  the  Supreme  Court  of 
the  United  States  in  a  late  case  (Northern  Pacitic  R.  Co.  v.  Herbert,  33 
Alb.  L.  J.  288),  where  it  was  held  that  the  liability  of  a  railroad  com- 
pany for  an  injury  sustained  by  its  brakeman  by  reason  of  a  defective 
brake  was  not  affected  by  a  statute  which  provided  that  an  employer  is 
not  bound  to  indemnify  his  employe  against  the  negligence  of  another 
employe  in  the  same  general  business,  unless  he  failed  to  use  ordinary 
care  in  the  selection  of  the  culpable  employe.  See  Cunard  Steamship 
Co.  V.  Carey,  7  S.  Ct.  Rep.  13G0. 

And  in  the  Federal  courts. —  Lund  v.  Hersey  Lumber  Co.,  41  Fed. 
Rep.  202;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Reesman,  GO  Fed.  Rep.  370;  9 
C.  C.  A.  20;  Northern  Pac.  R.  Co.  v.  Charless,  51  Fed.  Rep.  562;  2  C  C. 

A.  380;  7  U.  S.  App.  359;  Heckmann  v.  Mackey,  35  Fed.  Rep.  353;  Flint 

B.  &  C.  Co.  V.  Brown,  67  Fed.  Rep.  68 ;  3  Am.  Lawyer,  327. 


MASTKK    AM)    SKHVANT.  197 

hv  tho  rospondonts  of  n  sub-manager  or  foreman.  I  think 
the  K'arnt'(l  ju(l«;o  ought  to  have  told  tho  jury  that  if  thoy 
wore  of  opinion  that  the  respondents  exercised  duo  care  in 
Hcleotiiig  pioper  and  competent  persons  for  tho  work,  and 
furnished  them  with  suitable  means  and  resources  to  ac- 
complish the  work,  tho  respondents  were  not  liable"  (m). 
It  seemed  to  be  agreed  in  this  case  that  tho  terms  '*  fellow- 
workman  or  servant,"  "  collaborateur,"  *♦  forennin,"  or 
♦'  manager  "  are  misleading,  and  it  seems  to  be  the  result 
of  this  case,  that  when  the  master  has  provided  proper 
inenns  and  resources  for  tho  work  ho  is  not  responsible  for 
the  acts  of  those  in  his  employment  injuring  one  another, 
whatever  their  particular  grade  or  denomination  may  be, 
provided  they  are  engaged  in  the  common  employment. 

In  order  to  exonerate  the  master,  the  servant  who  does 
the  injury  must  not  only  bo  tho  *'  fellow-servant  "  of  the 
[152]  servant  injured,  but  the  two  servants  must  be  in  the 
*•  same  common  employment  "  (n ).     "  There  may  be  some 

(■»)  Wilson  r.  Merry,  L.  R.  1  S.  .t  I).  work    and     cnRlnc-drivor    of    trains); 

App.,at  !>.  33:$.  IJonrkc  v.  VVliito  Moss  Colliery  Co.,  L. 

(n)  Tho  following  persons  have  been  R.  2  C.  1'.  C.  20.5    (rlffcndants,  colliery 

held  to  be  onpnKi'd    In  a  common  em-  proprietors,  contracteil  with  W.,  plain- 

ployment.— Waller  r.    S.   E.  Ry.   Co..  2  tiff'.s  employer,  to  do  work,  they  to  pay 

li.ftO.  IW;  I»vegrovc  t*.  Ij.  B.  &  S.   C.  enprlnoer  and  provide  steam  power,  en- 

Ry.  Co.,  in  C.   ».  N.  S.   ceo    (guard   of  gliiccr  to  be  under  control  of  W. ;  held, 

train  and  platelayer);  Ruseel  r.  ITnd.son  plaintiff  and  engineer  In  common  em- 

KiTer  Co.,  17  N.  Y.  134  (assistant  brake-  ployment  of  W.). 

man  and    engine-driver);    Farwell    r.  The    following   servants  have  been 

I   Bocton  Uy.  Co., 4  .Metc.49( engine-driver,  held  not  to  be  engaged  In  a  common  em- 

and  engine-driver  and  guard  of  another  ployment:  Turner  r.  Great  Kastern  Ry. 

train);  Charles   r.    Taylor,    Walker   A  Co.,  33  L.  T.  N.  S.  431    (a  laborer  em- 

Oo.,   K  R.  3    C.  P.  D.  4;>2    (unloadcr  of  ployed  by  a  contractor  to  unload  trucks, 

<*oaU  from  bargo  and  lifter  of  barrels) ;  and    porters    engaged    In     shunting); 

nartonshlll    Coal    Co.  r.  Ucid,  3    Macq.  Warburton    v.    G.    W.  Ry.    Co.,  L.  R.  2 

j   II.  L,  286  (engineer  of  coal  mine  above  Kxrli.  3n;  36  L.J.  Ex.9;  Chicago  Ry.  r. 

I   rronnd  and  men  below) ;  Hull  v.  John-  Gregory,  58  111.  272    (fireman    and  con- 

j  •on,  8  H.  A  C.  689  (worbmon  and  under-  troller    of     mail    catcher);     Balrd     v. 

I   looker  in  a  coal  mine) ;  Morgan  v.  Vale  Pettitt,  70  Pa.  St  477  (draftsmen  in  en- 

I   of  }«ath  Ry.  Co.,  L.  R.  1  Q.  R.  1I9;  44  L.  gine  house  and  jobbing  carpenter) ;  and 

I   J.  Q,  It.  23  (carpenter  and  porters  shift-  see  the  cases  an/?,  where  servants,  have 

j  'n(t  locomotive) ;  IJoMt  f.  N.  Y.  Central  been  held  not  to  bo  fellow  servants,  and 

Uy.  Co.,  18  N.  Y.  432;  Ryan  f.  Cumber-  whereas  will  bo  seen  upon  reading  tho 

Und  Valley  Ry.  Co.,  20  Pa.  St.  :W4  ;  and  cases,  the  distinction  between  "  fellow 

other  caaes   In    America;   and  Tnnney  service  "  and  "  common  employment  " 

«.  Uldland    Ry.  Co.,    L.  R.    1    C.    P.  291  la  not  always  maintained.    See  note  (x) 

(workmen  on  lino  carried  free  to  their  <«;i/i',  p.  177,  as  to  alteration  In  the  law. 


198      NEGLECT   OF    DUTIES    REQUIRING    ORDINARY    CARE. 

nicety  and  difficulty  in  peculiar  cases  in  deciding  whether  a 
common  employment  exists  ;  but  in  general,  by  keeping  in 
view  what  the  servant  must  have  known  or  expected  to  have 
been  involved  in  the  service  which  he  undertook,  a  satis- 
factory conclusion  maybe  arrived  at"  (o);  or,  in  other 
words,  the  question  is,  did  the  servant  know  that  the  em- 
ployment of  the  other  servant  was  one  of  the  terms  of  their 
common  service  (i?)  ?  Is  it  "the  natural  and  necessary 
consequence  of  the  employment  which  the  servant  has 
accepted"  {q)"^  All  the  servants  of  one  master  may  not 
be  engaged  in  a  common  employment,  their  employments 
may  be  absolutely  distinct  and  separate,  so  that  one  servant 
could  not  possibly  be  supposed  to  consider  the  acts  of  the 
other  to  be  part  of  the  risks  of  service  which  he  undertook, 
[153]  but  it  would  be  "  letting  in  a  flood  of  litigation," 
if  the  "  employes  in  every  large  establishment  are  split  up 
into  different  departments  of  service;  although  the  com- 
mon object  of  their  employment,  however  different,  is  but 
the  furtherance  of  the  business  of  the  master,  yet  it 
might  be  said  with  truth  that  no  two  had  a  common  imme- 
diate object.  This  shows  that  we  must  not  over  refine,  but 
look  at  the  common  object  and  not  at  the  common  imme- 
diate object  (s).  Even  if  their  occupations  lie  far  apart, 
it  seems  that  they  may  be  engaged  in  a  common  employ- 
ment (0.  If  there  is  one  common  general  object  to  be 
attained  by  the  two  servants,  it  is  immaterial  that  the  im- 
mediate object  of  their  work  is  different  {it). 

(o)  ye?' Lord  Chelmsford,  Bartonshin  (s)  Morgan  v.  Vale  of  Neath,  «Mpra. 

Coal  Co.  V.  McGuire,  3  Macq.  H.  L.  300  {t)  Farwell  v.  Boston  Ry.  Co.,  4  Mete. 

308.  49  (engine-drivers  of  different  trains); 

(p)  Feltham  v.  England,  L.  R.  2  Q.  B.  [infra], 
36;  36  L.  J.  Q.  B.  14.  (m)  Charles  v.  Taylor, L.  R.  3  C.  P.  D. 

(q)  Morgan  v.  Vale  of  Neath,  L,  R.  1  492;  Morgan  v.  Vale  of  Neath,  supra, per 

Q.  B.  149;  41  L.  J.  Q.  B.  23.  Pollock,  C.  B. ;  [post,  p.  199]. 

(t)  Engineer  and  brakeman  on  different  trains  of  same  company. — 
Hough  V.  R.  Co.,  100  U.  S.  213. 

Conductor  and  brakeman  on  different  trains  of  the  same  company. — 
Pittsburgh,  etc.,  R.  Co.  v.  Devinney,  17  Ohio  St.  197. 


MASTEi:    AM)    8EUVAXT.  I'JU 

SECmOX  \'l.  — Sun-SECTION    II. 

(2.)  Jirearh  of  Duty  (o  Others. 

A  master  is  responsible  to  other  persons  besides  his  own 
servants  for  nei;lii:enco  of  himself,  his  deputy,  or  his  serv- 
!inl  while  employed  as  such  (u).  And  ho  is  responsible 
nnjonust  other  things  for  properly  selecting  his  scrviints  (a:). 

If  the  servant  is  not,  ut  the  time  when  he  commits  :ui 
lujuiinus  ju't,  engaged  in  pursuing  his  master's  employ- 
ment, but  in  pursuing  his  own  private  ends,  the  master  is 
[154]     not  liable  lor  his  servant's  acts  (y).     This  is  the 

(r)  Brncker  r.  Fromont,  (>  T.  U.  659;  237;  Storey  r.  Ashton,  L.  H.  4  Q.  IJ.  47ti; 

[poit.V.  IM).  38  L.  J.  Q.  R.  2-2:i  (driver  not  putllnj;  up 

(x)  Wilson  V.  Merry,  L.  R.  1  S.  &  I).  horse,  but  driving  off  on  own  account) ; 

aM;  Wanstall  v.  Pooley,  6  01.  &  Fin.  HIO,  see,  however,  Heuth  r.  Wilson,  2  »I.  & 

■.;  Whcatley  v.  ralrick,  3  M.  &  W.  (ISO.  Uob.  LSI ;  and  also  seo  Joel  r.  Morrison, 

(jfj  Mitchell  t'.  Cra88wcllcr,  13  C.  li.  ti  C.  &  1'.  OUl,  where  a  servant  uiado  a 

Engineer  and  track  inspector. —  Lovejoy  v.  Boston,  etc.,  It.  Co.,  125 
Mass.  79. 

Bralieman  and  train  dispatcher.—  Robertson  v.  Terre  Haute,  etc., 
B.  Co.,  78  Ind.  77;  41  Am.  Kep.  552. 

See  •'  Fellow-servant,"  ante,  pp.  179  e«  seq. 

(u)  Warner  v.  Erie  R.  Co.,  39  N.  Y.  4G8,  479;  Pittsburgh,  etc.,  R.  Co. 
».  Devlnney,  17  Ohio  St.  197;  Wood  v.  New  Bedford  Coal  Co.,  121  Mass. 
262;  Wilson  v.  Hudson  R.  W.  &  P.  Co.,  24  N.  Y.  S.  Rep.  1072. 

(p)  Conlon  V.  Eastern  R.  Co.,  135  Ma^is.  19G;  Joslin  v.  Grand  Rapids 
Ice  Co.,  60  Mich.  olG ;  45  Am.  Rep.  54 ;  Mitchell  v.  Robinson,  80  Ind.  281 ; 
41  Am.  Rep.  812;  Evans  v.  Davidson,  53  Md.  245;  3G  Am.  Rep.  400;  Vogel 
V.  Mayor,  etc.,  N.  Y.,  92  N.  Y.  17;  Carson  v.  Leathers,  57  Miss.  650; 
Andrews  v.  Boedecker,  12(J  111.  605;  18  N.  E.  Rep.  651;  Brazil  v.  Peter- 
son, 44  Minn.  212;  46  N.  W.  Rep.  331;  Brown  y.  Sullivan,  71  Tex.  470; 
10  S.  W.  Rup.  288;  Osborn  v.  McMasters,  40  Minn.  103;  41  N.  W.  Rep. 
M3;  SUte  v.  Swayze,  52  N.  J.  L.  129;  18  Atl.  Rep.  697;  Moore  v.  Columbia 
4  G.  R.  Co.,  38  S.  C.  1;  16  S.  E.  Rep.  781;  Waters  v.  Pioneer  Fuel  Co., 
62  Minn.  474;  55  N.  W.  Rep.  52;  Western  Union  Tel.  Co.  v.  Satterfleld, 
M  111.  App.  386;  Potulni  v,  Sanders,  37  Minn.  517;  35  N.  W.  Rep.  379; 
Electric  Power  Co.  v.  Metropolitan  T.  &  T.  Co.,  75  Hun,  68;  27  N.  Y.  S. 
Rep.  93;  Tinker  v.  New  York,  O.  &  W.  R.  Co.,  71  Hun,  431 ;  24  N.  Y.  S. 
Rep.  977;  Bruner  r.  American  T.  &  T.  Co.,  160  Pa.  St.  300;  28  At!.  Rep. 
«90;  Ft.  Worth  &  N.  O.  Ry.  Co.  v.  Smith  (Tex.  Civ.  App.),  25 
8.  W.  Rep.  1032. 


200      NEGLECT   OF   DUTIES   REQUIRING   ORDINARY   CARE. 

rule  with  respect  to  all  wrongful  acts,  whether  negligent  or 
not. 

If  the  master  has  given  the  servant  cause  to  believe  that 
a  certain  act  will  be  within  the  course  ©f  his  employment, 

slight  detour.  It  would  be  a  question  for  still  in  employment) ;  Williams  v.  Jonea, 
the  jury  whether  the  servant  was  sub-  33  L.  J.  Ex.  297;  3  H.  &  C.  602,  in  Ex.  Oh. 
stanlially  engaged  upon  his  master's  (carpenter  smolving  a  pipe  set  fire  to  a 
business  or  his  own.  See  also  Rayner  shed;  held,  not  in  course  of  employ- 
r.  Mitchell,  L.  R.  2  C.  P.  D.  357  (servant  ment) ;  Lunn  v.  L.  &  N.  W.  Ry.  Co.,  35  L 
of  brewer  returning  with  empty  casks,  J.  Q.  B.  105;  L.  R.  1  Q.  B.  277  (watchman 
not  in  employment).  Where,  upon  the  at  level  crossing,  exercising  discretion 
other  band,  the  servant  was  going  on  his  as  to  passage  of  a  cart) ;  Weldon  v.  New 
own  business  in  a  gig,  but  undertook  York  &  Harlem  Ry.  Co.,  5  Bosw.  576  (de- 
some  business  for  his  master,  in  the  per-  fendant's  servant  mischievously  stmck 
formance  of  which  he  ran  against  plain-  horses  in  charge  of  another  servant); 
tifif's  horse,  the  master  was  held  liable;  Satterlee  v.  Groot,  1  Wend.  273  (a  serv- 
Patten  v.  Rea,  2  C.  B.  N.  S.  606;  Ven-  ant  being  sent  for  goods  of  A.,  brought 
ablest'.  Smith,  L.  R.  2  Q.  li.  D.  279;  46  L.  also  goods  of  B.,  and  embezzled  A.'s 
J.  Q.  B.  470  (cab  driver  returning  home  goods ;  master  not  liable) ;  [post,  p.  203]. 

(y)  This  principle  is  illu.'^trated  in  a  number  of  cases.  A  railroad 
company  is  not  liable  for  damage  to  property  adjoining  its  road  by  fire 
kindled  by  its  section  men  for  the  purpose  of  cooking  their  meals  while 
engaged  in  repairing  track.  —  Morier  v.  St.  Paul,  etc.,  Ry.  Co.,  31  Minn. 
361 ;  47  Am.  Eep.  793. 

Defendant's  servant,  a  teamster,  went  out  of  his  way  to  deliver  a 
message  at  the  request  of  the  person  to  whom  he  was  sent,  and  while  so 
engaged  his  team  ran  away  injuring  plaintiff.  The  defendant  was  held 
not  liable,  —  Stone  v.  Hills,  45  Conn.  44 ;  29  Am.  Rep.  G35. 

Defendant's  minor  son,  who  had  been  permitted  to  use  his  father's 
horse  and  wagon,  took  thera  in  his  absence  and  without  his  knowledge 
on  his  own  business,  and  while  so  using  them,  through  his  negligence, 
the  horse  ran  away  injuring  plaintiff.  Defendant  was  held  not  liable.  — 
Maddox  v.  Brown,  71  Me.  432;  36  Am.  Rep.  336. 

But  where  the  defendant,  the  owner  of  an  express  wagon,  employed  a 
driver  with  authority  to  secure  and  transact  such  business  as  he  could; 
and  the  driver,  having  delivered  a  trunk,  on  his  return  got  a  load  of 
poles  for  himself  and  while  carrying  them  home  on  the  wagon  negli- 
gently ran  over  and  injured  plaintiflE's  child,  the  defendant  was  held 
liable.  — Mulvihill  v.  Bates,  31  Minn.  304;  47  Am.  Rep.  796. 

Where  a  conductor  stopped  his  train,  pursued  a  boy  on  foot  into  his 
father's  house  with  a  pi~tol  in  his  hand,  seized  him  and  carried  him  off 
on  the  train,  it  was  held  that  the  railroad  company  was  not  liable.  — 
Gilliam  v.  South  &  North  Alabama  R.  Co.,  70  Ala.  268. 

Where  a  driver  for  a  street  railway  company  having  authority  to 
change  money  for  passengers,  wrongfully  procures  the  arrest  of  a  pas- 
senger on  the  charge  of  passing  counterfeit  money,  the  company  is  not 


MAUTKK    AND    bliUVANT SCOl'E    Ol'    KMl'LOYMKNT.       201 

or  if  the  act  i.s  such  ii8  servants  employed  in  the  Hiirao 
cuuucily  usually  pcrlbrin    as    part   oi    their  (hily,  then  it 

liable  for  the  false  Imprisonment.  — Lalllte  v.  New  Orleans,  etc.,  U.  Co., 
43  La.  Ann.  34;  8  So.  Uop.  701. 

The  employer  of  a  bill  poster  Is  not  liable  for  the  death  of  a  horse 
frightened  by  a  lot  of  bills  left  by  him  In  the  road  about  llflten  miles 
(rum  the  boards  upon  which  ho  was  to  post  them.  —  Smith  v.  S{)iiz,  160 
Ma.H8.3iy;  31  N.  E.  Rep.  6. 

In  the  following  cases  the  servant  has  been  held  acting  within  the 
line  of  his  employment:  — 

A  Bervant  employed  in  general  farm  work  In  driving  a  cow  out  of  bis 
muMier's  corn  Held  during  his  absence  struck  her  with  a  stone  which 

■  d  her.  The  master  was  held  liable.  —  Evans  v.  Davidson,  53  Md. 
iG  Am.  Rep.  400. 

^o  where  a  servant  in  testing  a  boiler  tested  It  beyond  Its  capacity, 
•  ttuslDg  It  to  explode,  though  cautioned  by  the  master  to  test  it  within 
a  certain  limit,  which  he  exceeded,  the  master  was  held  liable  for  injuries 
to  a  third  person.  —  Ochsenbein  v.  Shapley,  85  N.  Y.  214. 

And  where  a  toll-gate  keeper  having  charge  of  the  gate  at  all  times, 
but  not  required  to  collect  toll  at  night  after  nine  o'clock,  let  the  beam  of 
the  gate  down  upon  the  plaintiff  who  was  endi-avoring  to  pass  the  gate 
afl«r  the  hour,  and  injured  him,  the  company  was  hcUl  liable. —  Nobles- 
vlUe,  etc.,  Gravel  Road  Co.  v.  Cause,  7G  Ind.   142;  40  Am.  Rep.  224. 

A  pilot  of  defendant's  ferry  boat  took  on  board  a  boatman  without 
compensation,  agreeing  to  put  him  on  his  boat  in  a  tow  passing  up  the 
river,  lie  had  done  this  before  but  not  to  defendant's  knowledge.  The 
ferry  boat  diverged  from  its  regular  course  and  negligently  collided  with 
a  canal  boat,  killing  plaintiff  intestate.  The  defendant  was  held  lia- 
ble.—Qulnn  V.  Power,  87  N.  Y  535;  41  Am.  Rep.  392.  See  Reilly  v. 
Uannlbal  &  St.  J.  li.    Co.,  94  Mo.  600;  7   S.    W.  Rep,  407. 

Where  a  locomotive  engineer  is  permitted  to  flag  up  to  a  station  for 
water,  contrary  to  a  rule  of  the  company,  it  is  held  that  the  company 
Is  liable  for  the  consecjuentiai  Injuries  to  another  engineer. —  Gross  w. 
Pennsylvania,  etc.,  R.  Co.,  62  Hun,  619;  16  N.  Y.  S.  Rep.  616. 

In  the  following  cases  the  servant  was  held  not  acting  in  tbe  line  of 
hlB  employment,  and  the  master  not  liable :  — 

Where  defendant's  armed  watchman  employed  to  guard  his  brewery 
fatally  shot  C.  as  he  was  retreating  from  the  brewery. —  Golden  v.  New- 
brand,  52  la.  59;  S.  P.,  Candiff  «.  Louisville,  etc.,  Ry.  Co.,  42  la.  477;  7 
•So.  R.p,  601.  See  Christian  v.  Columbus  &  R.  Ry.  Co.,  90  Ga.  124;  15 
S.  E.  Rep.  701 ;  llaehl  t?.  Wabash  R.  Co.,  119  Mo.  325;  24  S.  W.  Rep.  737. 

Where  an  engineer  gave  to  a  boy  thirteen  years  old  permission  to  rldo 
on  a  freight  train  and  the  boy  was  injured. —  Chicago,  etc.,  R.  Co.  v. 
Caaey,  9  111.  App.  632.  See  Flower  v.  Hailroad  Co.,  69  Pa.  St.  210;  Daw- 
k.ns  V.  Gulf,  etc.,  R.  Co.,  77  Tex.  232;  13  S.  W.  Rep.  984. 


202      NEGLECT    OF    DUTIES   REQUIRING   ORDINARY    CARE. 

is  to  be  considered  as  done  in  the  course  of  the  employ- 
ment, and  if  it  is  negligently  or  wrongfully  performed, 
the  master  will  be  liable.  The  employer  "  has  put  hi^ 
agent  in  his  place  to  do  that  class  of  acts,  and  he  must  be 
answerable  for  the  manner  in  which  the  agent  has  con- 
ducted himself  in  doing  the  business  which  it  was  the  act 
of  his  master  to  place  him  in  "  (z).  It  has  also  been  said 
that  there  is  an  implied  authority   to  do  all  those  things 

(s)  Barwlck  v.  English  Joint  Stock  Co.,  L.  R.  2  Ex.  259;  36  I..  J.  Ex.  147,  per 
WUles,  J. 

Where  a  toll-keeper  displays  objects  near  the  bridge  entrance  on 
premises  leased  from  the  bridge  company,  the  company  is  not  liable  for 
injuries  to  horses  frightened  by  the  objects. —  Wiltse  v.  State  Board 
Bridge  Co.,  63  Mich.  639;  30  N.  W.  Rep.  370.  See  Burger  v.  St.  Louie, 
etc.,  R.  Co.,  123  Mo.  679;  27  S.  W.  Rep.  393. 

A  railroad  company  is  not  responsible  where  its  baggage  master,  by 
menaces  and  threats,  and  for  his  mere  amusement,  caused  a  passenger 
entering  the  express  car  to  jump  from  it  while  in  motion, —  Louisville, 
N.  O.  &  T.  Ry.  Co.  v.  Douglass,  69  Miss.  723;  11  So.  Rep.  933.  But  see 
Stephenson  v.  Southern  Pac.  Co.,  93  Cal.  558;  29  Pac.  Rep.  234. 

The  owner  of  a  foundry  for  years  had  given  the  ashes  to  their  engi- 
neer in  consideration  of  his  removing  them  after  working  hours.  The 
engineer  deposited  them  to  the  knowledge  of  his  employers  on  an  unin- 
closed  lot  opposite  the  foundry  owned  by  third  persons  whose  permis- 
sion he  had  obtained,  and  sold  the  ashes  to  third  persons  and  to  the 
defendants.  A  young  child  running  across  that  lot,  fell  into  a  quantity 
of  the  hot  ashes,  and  was  burned.  It  was  held  that  the  owners  of  the 
foundry  were  not  liable  therefor. —  Burke  v.  Shaw,  59  Miss.  443 ;  42  Am. 
Rep.  370. 

Where  a  coachman  after  having  used  his  master's  horses  in  going  upon 
an  errand  for  his  master  instead  of  taking  them  to  a  stable,  used  them  in 
going  upon  an  errand  of  his  own,  without  his  master's  knowledge  or  con- 
sent, and  while  doing  so  he  negligently  ran  into  and  injured  the  plaintiff's 
horse,  it  was  held  that  his  master  was  not  liable. —  Whart.  on  Neg.,  §  168, 
citing  Sheridan  v.  Charlick,  4  Daly,  338. 

Where  a  railroad  fireman,  without  authority,  but  to  assist  a  public 
celebration,  takes  torpedoes  from  the  caboose  and  places  them  on  the 
track,  the  company  is  not  liable  for  the  injury  caused  by  their  explo- 
sion  Chicago,  B.  &  Q.  R.  Co.  v.  Epperson,  26  111.  App.  72. 

Defendant  was  held  to  be  not  liable  where  his  employes,  whose  duty 
was  to  run  his  steamboat,  undertook  to  operate  his  a3rial  railway  and 
injured  plaintiff. —  Biederman  v.  Brown,  49  111.  App.  483. 


MASTER   AND    SERVANT.  203 

that  are  necessary  for  the  protection  of  the  proi^Tty  i-n- 
trusteil  to  Ji  person,  or  for  fiiKillinu:  the  dnty  which  u 
[155]  person  has  to  perform  (a).  Wheie  HcMvants  of 
coiiipiini»'s  liavo  authority  to  remove  persons  misbchuvin*^ 
themselves  [1"'*']  upon  t ho  premises,  the  companies  hjivo 
frcciuentlv  been  held  liahlo  for  the  nc^^ligent  or  otherwise 
wronizful  act  of  their  servants  in  the  course  of  the  per- 
formance of  their  duty  in  this  respect  {b). 

It  has  been  said  that  even  where  an  act  is  within  the 
^oope  of  the  servant's  employment,  yet  if  it  is  done  for  the 
jmrpose  of  performing  an  act  beyond  the  scope  of  thts 
employment  the  master  will  not  be  liable.  Tims,  where  a 
servant's  duty  was  to  lifrht  tires,  but  she  lit  one  for  tli(>  i)ur- 
pose  of  cleaning  the  chimney,  with  which  she  had  nothing 
[157]  to  do,  it  was  held  that  her  master  was  not  liable  (c). 
Such  cases  as  these  must  be  of  somewhat  rare  occurrence. 
The  case  cited  scarcely  seems  to  have  come  within  the  ride, 
aa  it  probably  was  within  the  scope  of  the  servant's  duties 
toclean  the  chimneys,  if  not  to  sweep  them.  But,  however 
that  may  be,  a  servant  cannot  properly  be  said  to  be  per- 
forming his  ordinary  duties  at  the  same  time  that  he  is  pur- 
suing some  purpose  differing  from  his  duties.  The  whole 
question  is,  is  he  performing  his  ordinary  duty,  or  is  he 
<loing  something  different  therefrom?  and  this  (subject  to 
an  explanation  from  the  judge  as  to  how  far  the  mere  license 
oC  ordinary  practice  may  be  evidence  of  what  the  ordinary 
duty  is)  is  a  question  for  the  jury. 

It  is  no  defense  to  allege  that  the  servant  exceeded  his 

(a)  Allen  f.  L.  &  S.  W.  Ry.,  I*  R.  C  Q.  Line.  Ry.  Co.,  L.  R.  8  C.  P.  148;  42  L.  J.  C. 

B.  65, p«r  HlacklMirn,  J.  1".  7S  (assault— porter  jiulling  imssengcr 

(6)  Seymour  I-.  Greenwood,  7  H.  A  N.  back  from  train  In   motion);   Mooro  v. 

3B«;S0L.  J.  Kx.  327  (uasault  —  Ruarils  of  Met.  Ry.  Co.,  h.  R.  8  (.).  15.  :?6;  42  I..  J.  Q. 

oronfbusos) ;  Meyer  r.  Second  Avenue  B.  2.3  (false    Imprisonment  — i>a.'<HenKer 

By.  Co.,  8  UoBw.  30.%  (driver  of  tramway) ;  not  payhiR  proper  faro,  given  In  custody). 
taadiord  r.  Klghth  Avenue  Ry.  Co.,  42  (c)  Mackenzie  i-.  McLcod,  10 lUng.  383. 

Pa.  81.  3i»  (do.) ;  Bayley  v.  Man.  Sheff.  & 

This  has  been  held  In  cases  of  removal  of  persons  from  railroad  trains, 
baTlng  a  right  thereon,  by  the  servants  of  the  company.—  Hounds  v.  Del- 


204      NEGLECT   OF   DUTIES    REQUIRING   ORDINARY   CARE. 

orders  or  acted  contrary  to  orders,  if  he  was  acting  in  the 
[158]  course  of  bis  employment  (cZ);  nor  even  that  he  was 
acting  illegally  (e). 

It  has  also  frequently  been  held  that  if  the  servant,  al- 
though engaged  all  the  while  in  the  ordinary  course  of  his 

(d)  Limpus  r.  London  Omnibus  Co.,  (e)  See  same  case, per  Crompton,  J. 

1  H.  &  C.  526;  32  L.  J.  Ex.  34  (omnibuses       [infra], 
racing) ;  [infra]. 

aware,  etc.,  E.  Co.,  64  N.  Y.  129;  Chicago,  etc.,  K.  Co.  v.  Bryan,  90  HI. 
126 ;  Great  Western  R.  Co.  v.  Miller,  19  Mich.  305. 

Or  having  no  right  thereon. —  Pennsylvania  Co.  v.  Toomey,  91  Pa.  St. 
256;  Mobile  &  O.  R.  Co.  v.  Seals,  100  Ala.  368;  13  So.  Rep.  917;  Texas  & 
P.  Ry.  Co.  ».  Mather,  6  Tex.  Civ.  App.  87;  24  S.  W.  Rep.  79;  Chicago,  M. 
&  St.  P.  R.  Co.  ».  West,  24  111.  App.  44;  affirmed,  125  111.  320;  17  N.  E. 
Rep.  788;  Farber  v.  Missouri  Pac.  Ry.  Co.,  32  Mo.  App.  378. 

Where  excessive  force  is  used  or  the  removal,  is  effected  at  a  time  or 
place  where  injury  is  likely  to  result. — Jackson  v.  Second  Ave.  R.  Co.,  47 
N.  Y.  274;  Howe  v.  Newmarch,  12  Allen,  49;  Penn.  R.  Co.  v.  Vandiver,  42 
Pa.  St.  365;  Hoffman  u.  N.Y.  Cent.,  etc.,  R.  Co.,  87N.  Y.  25;  41  Am.  Rep. 
337;  Carter  v.  The  Louisville,  etc.,  Ry.  Co.,  98Ind.  552;  Stone  v.  Chicago, 
etc.,  Ry.  Co.,  88  Wis.  98;  59  N.  W.  Rep.  457;  Lucas  v.  Michigan  Cent.  R. 
Co.,  98  Mich.  1;  56  N.  W.  Rep.  1039;  Texas  &  P.  Ry.  Co.  v.  Hayden,  C 
Tex.  Civ.  App.  745 ;  26  S.  W.  Rep.  331 ;  Lang  v.  New  York,  etc.,  R.  Co.,  61 
Hun,  603;  4  N.  Y.  S.  Rep.  565;  Haehl  v.  Wabash  R.  Co.,  119  Mo.  325;  24 
S.  W.  Rep.  737;  Smith  v.  Louisville  &  N.  R.  Co.,  95  Ky.  11 ;  23  S.  W.  Rep. 
652;  Kansas  City,  Ft.  S.  &  G.  R.  Co.  v.  Kelley,  36  Kan.  655;  14  Pac.  Rep. 
172. 

Where  plaintiff  while  crossing  the  street  stepped  upon  the  platform  of 
a  car  which  obstructed  the  crossing  and  was  pushed  off  by  the  driver  and 
injured.— Shea  v.  Railroad  Co.,  62  N.  Y.  180. 

Where  a  servant  whose  employment  was  to  clean  cars  and  keep  per- 
sons out,  kicked  a  boy  off  while  the  car  was  in  motion.  —  Porter  v.  Rail- 
road Co.,  41  la.  358. 

But  where  a  brakeman  who  had  authority  to  remove  persons  from  the 
company's  trains  only  upon  the  orders  of  the  conductor,  did  so  without 
such  orders,  the  company  was  held  not  liable,  as  the  brakeman  was  not ' 
acting  within  the  scope  of  his  authority.^  Marion  v.  Chicago,  etc.,  R.  Co., 
69  la.  428.  See  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Moody,  3  Tex.  Civ.  App.  622; 
Texas  &  P.  Ry.  Co.  v.  Moody  (Tex.),  23  S.  W.  Rep.  41. 

Where  a  discharged  employe  did  not  leave  the  premises  as  quickly  as 
defendant's  foreman  desired,  whereupon  the  foreman  assaulted  and  In- 
jured him,  it  was  held  that  the  defendant  was  liable  for  the  damage.— 
Rogahn  v.  Moore  Mfg.  &  F.  Co.,  79  Wis.  573;  48  N.  W.  Rep.  669. 


MASTElt    ANU    SEUVANT.  205 

cmployraont»  does  some  wanton  act,  the  master  is  not  liable  ; 
hut  th«  contrary  Iia>j  also  bcfii  luhl  in  many  caso.  The 
test  i--^,  wlic'lhor  the  wanton  act  was  done  in  tho  coutho  of 
the  employment  or  not,  although  tho  jiul^'ment-s  of  tho 
courts  do  not  always  ai)ply  the  test  accurately  ( / ) ;   and 

(/)  Vandurbullt  v.  Itlchmond  Turn-  tlio    court,   did    bo    upon    tho    ground 

|)Ua  Oo.,2  N.  Y.  479.    (Tho  ciiptnin  of  a  that  racing  wltli  the  riviil  omnibus  wu8 

tmmI,  aalllng    in    his   proper   courm:,  not,  ns  a  malti-r  of  fuct.  In  tho  cour.to 

waotonlj'  ran  down  a  veseol.    Tho  mas-  of  tho  servant's  duty.    A  servant  whilo 

tor  was  held    nut   liable,  no  doubt   bo-  driving  hU  master's  coach,  got   ontan- 

rauM  It  was  no  part  of  his  business  to  gled  with  plalntllf's,  and   struck  plain- 

run   down    the   vessel,  but    It  was    his  tilf's    horses.    It  waa    held    that    If    ho 

ordinary  duly  to  steer  clear  of  it.    He  struck  them  wnniouly  tho  master  was 

«%B*dlalinrtly  pursuing  his  own  privato  not  liable;  Croft  v.  Alison,  4  B.  &  Aid. 

caiU.)    nilnols  Central  U.  Co.  v.  Dow-  5'.»0;  and   seo    McManus   v.    Crickett,   1 

ncjr,   18   III.  25"J    (defendant's  servants  East,  UKi;  beymour  «.  Greenwood,  30  L. 

(■roNfonyy)  ran  a  tr:iiu  of  cars  over  tho  J.  Ex.  3J7;  7  II.    &  N.    350;    Stevens   v. 

plaintiff's  team,  and  tho  master  was  not  Woodward,  C   Q.    I(.    I).    315    (clerk   to 

liable).     Llinpus   v.    London    Omnibus  solicitors  went  into  lavatory  meant  only 

Co.,  Wi/ra,  shows  clearly  tho  nature  of  for  bis   employers   and   turned  on  the 

tho    Iruo    tesL      Mr.    Juhtice     Wight-  tap);    seo    Hayley  v.    Manchester    Uy., 

man,  who  dlUered  from    the    rest    of  «upra(assault— a  conductor  of  anomnl- 

(d)  It  is  no  defense  to  allege  that  the  servant  exceeded  his  orders  or 
acted  contrary  to  orders,  if  he  was  acting  in  the  cour.«e  of  his  employ- 
ment.— Ochsenbein  v.  Shapley,  85  N.  Y.  2U;  Paulinier  v.  Erie  li.  Co-.,  34 
X.J.  L.  151;  Toledo,  etc.,  R,  Co.  v.  Harmon,  47  111.  l.'98;  Philadelphia, 
etc.,  B.  Co.  V.  Derby,  14  How.  4(;8;  Fltzsimmons  v.  Alllwauliee,  etc.,  Ry. 
Co.,  98  Mich.  257;  57  N.  W.  Rep.  127;  Harriman  v.  Pittsburg,  etc.,  R. 
Co.,  46  Ohio  St.  11;  12  N.  E.  Rep.  451;  Mound  City  P.  &  C.  Co.  v.  Con- 
•",  92  Mo.  221 ;  4  S.  W.  Rep.  922;  Smith  v.  New  York,  etc.,  R.  Co.,  78  Hun, 
;  29  N.  Y.  S.  Rep.  540;  Receivers  Houston  &  T.  C.  Ry.  Co.  v.  Stewart, 
lex.J,  17  S.  W.  Rep.  33;  Consolidated  Ice  Machine  Co.  v.  Keifer, 
184  111.  481;  25  N.  E.  R.p.  799;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Hacicett, 
M  Ark.  381;  24  S.  W.  Rep.  881;  Atchi.son,  T.  &  S.  F.  R.  Co.  v.  Randall, 
40  Kan.  421 ;  19  Pac,  Rep.  783;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Ferguson, 
8  Colo.  App.  414;  33  Pac.  Rep.  084. 

In  Ileenrich  v.  Pullman,  etc.,  Co.,  U.  S.  Dist.  Oregon,  23  Am.  Law 
Reg.  459,  it  was  laid  down  that  a  car  company  is  responsible  to  a  pas- 
senger Injured  by  the  negligence  of  its  porter  In  letting  a  pistol  carried 
by  him,  fall  upon  the  floor  of  the  car,  although  he  was  carrying  the  pistol 
lor  a  passenger  and  was  expressly  forbidden  to  carry  any  baggage  for 
passengers. 

(«)  Nor  even  that  he  was  acting  illegally. —  Reynolds  v.  Hanrahan,  1(X) 
Maaa.  318;  Voegeli  v.  Plckel  M.  &  G.  Co.,  49  Mo.  App.  G43;  Kolzeni  o. 
Broadway  &  S.  A.  R.  Co.,  '20  N.  Y.  S.  Rep.  700;  1  Misc.  liep.  148;  Staples 
».  Schmld  (li.  1.),  26  Atl.  Rep.  193. 


206      NEGLECT    OF   DUTIES   REQUIRING   ORDINARY    CARE. 

[159]  indeed,  it  must  always  be  difficult  to  do  so.  If 
the  act  done  is  one  which  is  plainly  in  the  course  of  employ- 
ment, though  the  real  motive  is  personal  spite,  the  master 
is  not  exonerated,  as  it  would  be  obviously  unfair  to  the 
injured  party  to  start  such  a  defense  upon  him,  and,  of  the 
two  innocent  parties  (the  master  and  third  party),  it  is 
more  reasonable  that  the  master  should  suffer  (g). 

bus   violently  and  wantonly  dragged  a  into  horee  just  as  he  was  passing  plain- 

man  out  of  the  omnibus  for  being  drunk ;  tiflf's  wagon ;  held,  not  liable) ;  Lucas  r. 

it  was   held   that   the   act  was   in   the  Mason,  L.  R.  10  Ex.  251 ;  44  L.  J.  Ex.  145 

coarse    of    the    employment,   and    the  (assault  —  chairman    ordered    persons 

master  was  liable) ;  Ward  v.  Gen.  Omni-  making  disturbance  to  be  brought  be- 

bus  Co.,  42  L.  J.  C.  P.  265  (negligence  —  fore  him ;  held,  not  liable).— [Gregory©, 

question  for  the  jury,  whether  an  omni-  Ohio    River   R.,  37  W.  Va.  606;  16  S.  E. 

bus  conductor  struck  a  blow  with   his  Rep.  819;  Jones  v.  St.  Louis,  etc.,  Co.,  43 

whip  out  of  private  spite  or  in  further-  Mo.  App.  .SGS.l 

ance  of  his  master's  business) ;  Norths.  (^)  And  see  Shearman,  s.  66,  p.  85; 

Smith,  10  C.  B.  N.  S.  572  (negligence—  [post,  p.  209.] 
the  defendant's  groom  struck  his  spurs 

(rjT)  The  rule  that  a  master  is  not  liable  for  the  willful  acts  of  his  ser- 
vant although  done  in  the  course  of  his  employment  (McCoy  v.  Me- 
Kowen,  26  Miss.  487;  Pritchard  v.  Keefer,  53  111.  117;  Puryea  v.  Thomp- 
son, 5  Humph.  397),  has  been  rejected  by  the  best  and  latest  American 
authorities. —  Pittsburg,  etc.,  K.  Co.  v.  Donahue,  70  Pa.  St.  119;  Rams- 
den  V.  Boston,  etc.,  R.  Co.,  104  Mass.  117;  Goddard  v.  Grand  Trunk  R. 
Co.,  57  Me.  202;  Hawkins  v.  Riley,  17  B.  Mon.  101;  Chicago,  etc.,  R. 
Co.  V.  Dickson,  63  111.  151;  Mott  v.  Consumers  Ice  Co.,  73  N.  Y.  543. 
See  Cooley  on  Torts,  p.  536;  Pennsylvania  Co.  v.  Toomey,  91  Pa.  St.  256; 
Rounds  V.  Delaware,  etc.,  R.  Co.,  64  N.  Y.  129;  21  Am.  Rep.  697; 
Dickson  v.  Waldron,  135  Ind.  507;  35  N.  E.  Rep.  1;  "Winnegar  w. 
Central  Passenger  Ry.  Co.,  85  Ky.  547;  4  S.  W.  Rep.  237;  Kansas  City, 
Ft.  S.  &  G.  R.  Co.  V.  Kelley,  36  Kan.  655;  14  Pac.  Rep.  172;  Young  o. 
Pennsylvania  R.  Co.,  115  Pa.  St.  112;  7  Atl.  Rep.  741;  Schrubbe  v.  Con- 
nell,  69  Wis.  476;  34  N.  W.  Rep.  503;  Clark  v.  Koehler,  46  Hun,  536; 
Hissong  V.  Richmond  &  D.  R.  Co.,  91  Ala.  514;  8  So.  Rep.  776;  Gilling- 
ham  V.  Ohio  River  R.  Co.,  35  W.  Va.  588;  14  S.  E.  Rep.  243;  North  Chi- 
cago City  Ry.  Co.  v.  Gastka,  128  111.  613;  21  N.  E.  Rep.  522;  Pittsburgh, 
C.  &  St.  L.  Ry.  Co.  V.  Shields,  47  Ohio  St.  387;  24  N.  E.  Rep.  658;  Cobb 
V.  Columbia  &  G.  R,  Co.,  37  S.  C.  194;  15  S.  E.  Rep.  878;  Oakland  City 
A.  &  I.  Soc.  V.  Bingham,  4  Ind,  App.  545;  31  N.  E.  Rep.  383;  Pick  v.  Chi- 
cago &  N.  W.  Ry.  Co.,  68  Wis.  469;  32  N.  W.  Rep.  527. 

But  the  master  is  not  liable  for  exemplary  damages  unless  he  ratifies 
the  Willful  act  of  his  servant.—  Gulf,  C.  &  S.  F.  R.  Co.  v.  Moore,  69  Tex. 
157;  6S.  W.  Rep.  631. 

Where  a  brakeman  willfully  dashed  a  jet  of  water  upon  a  passenger 


MASTKi:    AM)    8EUVANT.  207 

It  tihoiiltl  be  l)oine  in  mind  that  where  the  aet  is  inten- 
tional tbo  question  of  negligence  does  not  arise  (// ) ;  yet  tho 

(A)  Ante,  p.  3. 

who  b«d  refused  to  pay  the  brakeman  for  watering  the  pansengcr's  hocn, 
the  company  was  held  liable. —  Terre  Haute,  etc.,  K.  Co.  v.  Jackson,  81 
iDd.  19. 

So  where  a  conductor  willfully  and  contrary  to  orders  detained  cars 
upon  the  road  whereby  plaintiff  was  injured. —  Weed  v.  Panama  li  Co., 
17  N.  Y.  3f,2. 

Where  a-ssaults   have  been    committed  upon   passengers  by  Iht*  com- 

j>any'»  servant,   the  company   is  liable.     Where   a    railroad   passenger 

-ied  his  watch  and  when  asked  who  he  thoujj;ht  had  it,  replied  "  liiat 

ow,"  polntinfi  to  the  brakeman,  whereupon  the  braktman  struck  hira 
in  the  face  with  a  lantern  and  injured  him,  the  company  was  held  liable. — 
Chicago,  etc.,  K.  Co.  v.  Flexman,  103  III.  uKi;  42  Am.  Rep.  33. 

So  where  a  railroad  conductor  forcibly  kissed  a  lady  passenger,  a  ver- 
dict of  §1,000  against  the  company  was  sustained  (Crokerv.  Chicago,  etc., 
R.  Co.,3G  Wis.  357;  17  Am.  Rep.  504).  "The  carrier,"  said  the  court.  In 
Brittoa  V.  Atlanta,  etc.,  Ry.  Co.,  88  N.  C.  530;  43  Am.  Rep.  748,  "  owes 
to  the  pa-i^senger  the  duty  of  protecting  him  from  the  violence  and  assaults 
of  his  fellow-passengers  or  intruders,  and  will  be  held  responsible  for  his 
own  or  his  servant's  neglect  in  this  particular,  wlien  by  the  exercise  of 
proper  care  the  acts  of  violence  might  have  been  foreseen  and  prevented; 
and  while  not  required  to  furnish  a  police  force  sufllcient  to  overcome  all 
force,  when  unexpectedly  and  suddenly  offered,  it  is  his  duty  to  provide 
ready  help  sufllcient  to  protect  the  passenger  from  assaults  from  every 
quarter  which  might  reasonably  be  expected  to  occur,  under  the  circum- 
Htances  of  the  case  and  the  condition  of  the  parties. —  See  Stewart  v. 
Brooklyn,  etc.,  R.  Co.,  90  N.  Y.  688;  43  Am.  Rep.  185;  Dillingham  v. 
Anthony,  73  Tex.  47;  11  S.  W.  Rep.  139;  Galveston,  II.  &  S.  A.  Ry.  Co. 
r.  McMonigal  (Tex.  Giv.  App.),  25  S.  W.  Rep.  341;  Dwiunelle  u.  New 
Yorit,  etc.,  R.  Co.,  120  N.  Y.  117;  24  N.  E.  Rep.  319. 

But  It  is  not  responsible  for  assaults  by  its  servants  upon  those  who 
are  not  passengers.— Porter  v.  Railroad  Co.,  41  la.  358;  Gilliams  v.  South. 
jetc.,  Ala.  R.  Co.,  70  Ala.  208. 

I  Nor  for  the  acts  of  mobs  (Pennsylvania  Ry.  Co.  v.  Hinds,  53  Pa.  St. 
bl2;  Kelly  r.  Shelby  R.  Co.  (Ky.  App.),  22  S.  W.  Rep.  445),  and  it 
lias  been  held  that  it  is  not  liable  on  account  of  insulting  conduct  of 
grangers  at  a  railway  station  toward  a  female  passenger. —  Battou  and 
Wife  r.  South,  etc.,  Ala.  U.  Co.,  77  Ala.  591;  22  Cent.  Law  Jour.  407,  note. 

Where  a  master.  In  sending  his  servant  to  take  personal  property, 
Instructs  him  to  neither  assault  any  one  nor  violate  the  law,  he  Is 
rpsponsihle  for  an  assault  and  battery  by  the  servant.—  McClung  v. 
I>carborne,  131  Pa.  St.  3'JG;  19  Atl.  Rep.  098:  20  W.  N.  C.  42. 


208      NEGLECT  OF   DUTIES   REQUIRING   ORDINARY    CARE. 

master  may  be  liable  in  an  action  of  tort  (other  than  negli- 
gence) if  such  intentional  act  was  within  the  scope  of  the 
employment.  Generally,  of  course,  if  the  servant  did  an 
intentional  wrong  it  would  be  without  the  scope  of  his  em- 
ployment, and  the  master  would  not  be  liable. 

Although  the  general  and  proper  rule  is  that  the  master  is  not  liable 
for  the  willful  acts  of  his  servants  unless  they  are  within  the  course  of 
his  employment  (Mulligan  v.  New  York  &  R.  B.  Ry.  Co.,  129  N.  Y.  606; 
29  N.  E.  Rep.  952;  Texas  &  P.  Ry.  Co.  v.  Black,  87  Tex.  160;  27  S.  W. 
Rep.  118;  Alabama  G.  S.  R.  Co.  v.  Harris,  71  Miss.  74;  14  So.  Rep.  263; 
Smith  V.  Memphis  &  A.  C.  P.  Co.  (Tenn.),  1  S.  W.  Rep.  104),  therp 
are  several  ill-considered  cases  to  the  contrary.  —  Mallach  v.  Ridley, 
24  Abb.  N.  C.  172;  9  N.  T.  S.  Rep.  922;  Fortune  v.  Trainor,  19  N.  Y.  S. 
Rep.  598;  Swinaston  v.  Le  Boutillier,  28  N.  Y.  S.  Rep.  53;  31  Abb.  N.  C. 
281;  7  Misc.  Rep.  639. 

In  Perry  v.  House  of  Refuge,  (63  Md.  20),  it  was  held  that  a  house  of 
refuge  being  a  corporation  instituted  for  charitable  purposes,  cannot  be 
made  liable  in  an  action  for  damages  for  an  assault  committed  by  one  of  its 
officers  on  an  inmate  of  the  institution.  The  cases  referred  to  to  support 
this  ruling  are  McDonald  v.  Massachusetts  General  Hospital,  120  Mass. 
432,  and  Feoffees  of  Heriot's  Hospital  v.  Ross,  2  Clark  and  Finnelly,  507. 

In  McDonald  v.  Mass.  General  Hospital  it  was  held  that  a  corporation 
deriving  its  funds  mainly  from  public  and  private  charity,  and  holding 
them  in  trust  for  the  object  of  sustaining  the  hospital,  without  the  expec- 
tation or  right  on  the  part  of  those  immediately  interested  in  the  corpora- 
tion to  receive  compensation  for  their  own  benefit,  is  a  public  charitable 
institution;  and  where  it  has  exercised  due  care  in  the  selection  of  its 
agents,  it  is  not  liable  in  an  action  for  injury  caused  by  their  negligence. 

In  the  case  of  Feoffees  of  Heriot's  Hospital  v.  Ross,  in  the  House  of 
Lords,  it  was  decided  that  "  if  charity  trustees  are  guilty  of  a  breach  of 
trust,  the  person  thereby  injured  has  no  right  to  be  indemnified  by 
damages  out  of  the  trust  fund."  But  see  Glavin  v.  R.  I.  Hospital,  12  R. 
I.  411;  34  Am.  Rep.  675,  where  it  was  held  that  one  who  sustains  an  injury 
at  a  public  hospital  from  unskillful  surgical  treatment  by  an  unpaid 
attending  surgeon  may  maintain  an  action  against  the  hospital  therefor, 
although  the  hospital  is  a  public  charity  supported  by  trust  funds  and  the 
plaintiff  paid  nothing  but  a  small  amount  for  board  and  attendance. 

It  is  a  general  rule  that  charitable  organizations  are  not  responsible 
for  the  malicious  or  negligent  acts  of  their  servants. —  Williams  u.  Louis- 
ville, I.  S.  of  Reform,  95  Ky.  251;  24  S.  W.  Rep.  1065.  See  Haas  «.  Mis- 
sionary Soc.  of  the  Most  Holy  Redeemer,  26  N.  Y.  S.  Rep.  868;  6  Misc. 
Rep.  281 ;  Union  Pac.  Ry.  Co.  v.  Artist,  60  Fed.  Rep.  365;  9  C.  C.  A-  U; 
Schrubbe  v.  Connell,  69  Wis.  476;  34  N.  W.  Rep.  503;  Eighmy  v.  Union 
P.  Ry.  Co.  (Iowa),  61  N.  W.  Rep.  1056;  40  C.  L.  J.  208. 


MASTER    AND    8KRVANT TUtSl'ASS.  209 

It  is  somewhat  doubtful  what  is  the  nieaniiig  of  an  act 
being  "  waiilon."  If  all  that  is  meant  is  that  tho  act  is 
**  very  ne«j;ligent  "  (/)  tho  master  is  liable  for  negligencey  if 
it  is  within  the  scope  of  the  employment  ;  and  if  what  is 
meant  is  that  it  is  *'  intentional,"  then  tho  master  is  lial>lo 
for  lort  (other  than  ne«^ligcnce),  if  it  is  within  tho  scope  of 
the  employment.  If  the  act  is  not  within  tho  scope  of  the 
employment  tho  master  is  not  liable.  So  that  the  master 
is  liahle  in  some  form  of  action  for  all  wrongful  acts  done 
within  tho  scope  of  the  employment,  but  if  tho  act  is  inten- 
tional and  within  tho  scope  of  the  employment,  the  form  of 
the  action  is  tort  (other  than  negligence),  but  if  it  is 
unintentional,  i.  e.,  negligence,  tho  form  of  the  action  is 
negligence. 

A  diflBculty  always  arises  in  determining  whether  the  act 
[IGO]  done  was  in  tlie  course  of  emjiloyment,  for  tho  mere 
fact  of  the  negligence  is  itself  an  indication  of  some  vari- 
ation in  the  [l<'l]  course  of  employment,  and  tho  lino 
iK'tween  such  variation  and  an  absolute  departure  must 
often  bo  very  fine  (k). 

It  is  said  that  "  a  master  is  not  bound  to  anticipate  a 
perfectly  gratuitous  trespass  on  the  part  of  a  servant,  such, 
jfor  example,  as  his  entering  without  necessity  upon  a 
stranger's  land.  No  presumption  of  autliority  arises  from 
the  fact  of  the  act  having  been  done  for  the  master's 
ihcncfit  or  from  his  silence  in  regard  to  it  {I).  The  fact 
jthat  the  act  done  was  for  tho  benefit  of  the  master,  how- 
jcvcr,  must  bo  some  evidence  of  the  act  being  done  in  tho 
■"■!rso  of  tho  employment  (>«)'  ''"^^^  '^  ^'^  illegal  act  be 
-']     within  the  scope  of  tho   servant's  probable  author- 

(O  8eo  LImpas  v.  Ixinrlon  Omnibus  citing  Church  v.  Mansflcd,  20  Conn.  2S4. 

[V».,«ipra  (••  wiintonly,  caroloeely,  reck-  See,  also,  Hiirris  v.    Nicholas,  6  Manf. 

l«««ly,  and  willfully").  483;    Lyon    r.    Mnrtin,  8    Ad.  &   E.  512 

(t)  Paryear  r.  Thompson,  5  Humph.  (driving  cattlo  Into  master's  closo,  and 

B7,  eitod  In  Shearman,  s.  66,  note    3,  thorn  distraining). 

'^- an  overseer  beat  a  slave  and  killed  (m)   See  Llmpus    r.  General    Omnl- 

inti-ndliig  to  do  t*o  ;  [ante,  p.  204].  bus  Co.,  anU,  p.  204. 
lO  Shearman    on  Negligence,  s.  62; 

U 


210   NEGLECT  OF  DUTIES  REQUIRING  ORDINARY  CARE. 

ity,  and  be  done  for  the  master's  benefit,  the  master  would 
be  held  responsible  (n). 

Questions  frequently  arise  as  to  whether  the  servant  of 
the  defendant  was,  at  the  time  when  the  injury  was  caused, 
still  in  the  defendant's  service  (o). 

(n)  Att.-Gen.  v.  Siddon,  1  C.  &  J.  220.  servant  (a  lighterman)  to  remove  a  boat. 

—  [Illinois  Cent.   K.  Co.  v.  Ross,  31  111.  Held,  that  he  was  still  acting  as  defend- 

App.  170.]  ant's  servant  (overruling  Lamb  v.  Palk, 

(o)  Page  V.  Defrles,  7  B.  &  S.  137.    A  9  C.  &  P.  621) ;  [infra]. 
foreman    of  a    wharf    told    defendant's 

(o)  In  De  Voinv.  Michigan  Lumber  Co.,  (64  Wis.  616),  A.  let  his  team, 
sleigh,  and  driver  to  B.  to  haul  logs,  and  by  the  direction  of  B.'s  fore- 
man the  driver  vrent  to  haul  some  hay.  Under  the  direction  of  a  guide 
furnished  by  the  foreman,  the  driver  drove  over  some  snovp-covered  icu 
on  a  river,  and  the  horses  broke  through  and  were  drowned.  It  was 
held  that  B.  was  liable  for  the  value  of  the  horses. 

Cassoday,  J.,  in  delivering  the  opinion  of  the  court,  said:  "The  acci- 
dent did  not  occur  by  reason  of  any  negligence  in  the  mere  driving  or 
handling  the  team,  but  in  obeying  the  directions  given  by  the  foreman 
and  guide,  and  driving  the  team  into  a  dangerous  place  without  knowing 
it  to  be  dangerous.  If  the  driver  was  negligent  at  all,  it  was  in  obeying 
directions  and  driving  out  upon  the  ice  for  the  first  time  without  first 
testing  its  strength.  If  the  guide  was  negligent  in  walking  behind  the 
sled  instead  of  going  ahead  of  the  team  and  testing  the  ice,  yet,  as  tlie 
service  in  which  they  were  then  engaged  was  not  such  as  was  contem- 
plated in  the  contract  of  hire,  he  was  not  a  co-employe  with  the  driver  in 
such  a  sense  as  to  relieve  the  defendant  from  liability  on  account  of  sucli 
negligence. —  Eailroad  Co.  v.  Fort,  17  Wall.  553 ;  Mann  v.  Oriental  P.  W., 
11  R.  I.  152;  Lalor  v.  Railroad  Co.,  52  111.  401.  Was  the  driver  the  agent 
of  the  plaintiff  in  the  act  of  obeying  the  directions  of  the  defendant's  fore- 
man and  guide  at  a  place  distant  from  the  camp,  and  in  a  kind  of  work 
not  contemplated  by  the  contract  of  hire?  It  seems  to  us  that  he  was 
not.  Of  course  the  driver  was  selected  by  the  plaintiff  to  drive  the  team 
in  performing  the  work  contemplated  in  the  contract  of  hire.  Had  the 
injury  occurred  by  reason  of  any  negligence  or  incompetency  of  tlie 
driver  while  engaged  in  the  work  or  service  so  contemplated  by  the  con- 
tract of  hire,  then  the  loss  would  have  fallen  upon  the  plaintiff;  for,  by 
selecting  him  to  drive  the  team,  he  had  taken  upon  himself  the  responsi- 
bility of  the  requisite  care  and  competency  of  the  person  so  selected  in 
doing  the  work  he  had  contracted  to  have  him  do. —  Quarman  v.  Burnett, 
6  Mees.&  W.  499;  Jones  v.  Mayor,  etc.,  14  Q.  B.  Div.  890;  Huff  v.  Ford, 
126  Mass.  24;  Joslin  v.  Grand  Rapids  Imp.  Co.,  50  Mich.  516.  And  yet 
while  engaged  in  such  contemplated  work,  had  the  team  been  injured 
solely  by  reason  of  having  been  driven  by  the  careless  direction  of  the 


.MASTKIC    AM)    SI". i:\A.\T.  'J  1  1 

The  master  is  liublo  for  the  negligence  of  uinler-servantrt 
euiployoil  by  his  servant  by  his  authority,  but  this  authority 

ilcfon<iant  Into  some  place  of    danger,  not   obvious  to   the  senses  and 
unknown  to  the   driver,  there  would  be  no  qiiestl(jn  of  the  defendant's 
UablUty. —  Inderraaur  v.  Dames,  L.  It.  2  C.  P.   311.     In  such  contem- 
plated service  the  defendant  was  still  under  obllt^ation  to  exercise  reason- 
able diligence  in  providing  a  suitable  place  for  the  team  to  be  driven,  or, 
la  other  words,  not  to  carelessly  cause  the  team  to  be  drlveu  into  a  place 
of  concealed  danger  unknown  to  the  driver.  —  Indermaur  v.  Dames,  L. 
li.  2  C.  P.  311;  Coombs  v.  New  Bedford  C.  Co.,    102  Mass.   583,   684; 
.Siroboda  r.  Wanl,  40  Mich.  423;  Parkhurst  v.  Johnson,  50  Mich.  70.     In 
CMC  of  Injury  in  such  contemplated  service,  the  mere  fact  thattlie  driver 
was  In  a  limited  sense  the  agent  of  the  plaintiff,  as  indicated,  would  not 
lake  away  the  liability  of  the  defendant,  under  whose  orders  ami  control 
he  was  acting  at  the  time,  for  negligently  inducing  him  to  drive  into  a 
place  of  concealed  dangi-r. —  Kourke  v.  White  M.  C.  Co.,  2  C.  P.  Div.  205. 
But  the  case  at  bar  Is  more  favorable  for  the  plaintiff  than  any  supposed. 
Here  the  Injury  occurred  when  neither  the  team  nor  the    driver  were 
razed  in  the  work  contemplated  in  the  contract  of  hire.     They  were 
;,  however,  doing  service  for  the  defendant  under  the  directions  of 
foreman  and  the  guide   selected  by  him.     The   team  was  drowned 
Iv  by  reason  of  being  driven  by  such  direction  into  a  place  of  con- 
■  d  danger  unknown  to  the  driver.     Had  not  the  team  at  the  time  of 
injury  been  accompanied    and  driven   by  the   driver    selected  and 
it'inployed  by  the  plaintiff,   there  could  be  no  question   but  wliat  .such 
■  HviTted  use  of  the  team  would  have  been  a  conversion  witliin  all  the 
orltles. —  Wheelock  v.  "Wheelwright,  5  Mass.  104;  Homer  r.  Thwing, 
..  I'ick.  492;  Ilall  v.  Corcoran,  107  Mass.  251;  Woodman  v.  Hubbard,  25 
[N.  H.  C7;  Hart  v.  Skinner,  16  Vt.  138.     The  same  rule  has  been  applied 
to  the  unauthorized  use  of  slaves. —  Horsely  v.  Branch,  I  Humph.  199; 
IScrugRS  V.  Davis,  5  Sneed,20I ;  Moseley  v.  Wilkinson,  24  Ala.  411 ;  Fail  v. 
\rthur,  31  lb.  20;  Spencer  v.  Pilcher,  8   Leigh,    oCG.     For  the  loss 
iig  such  diversion  or  misuse  tlie  defemlant  would  have  been  abso- 
lutely liable,  even  though  it  occurred  by  reason  of  the  fault  of  the  horses 
>r  a  mere  accident. —  Lucas  v.  Trumbull,  15  Gray,  SOt!;  Perham  v.  Conej', 
117  Mass.  102;  Fisher  v.  Kyle,  27  Mich.  454;  Lane  v.  Cameron,  38  Wis. 
>03.    Does  the  mere  fact  that  the  driver  consented  to  tlie  diversion   of 
•mployment,  and  was  in  the  act  of  driving  the  team  when  the  accident 
>ccarred,  relievo  the  defendant  from  the  liability  which   would  other- 
rise  have  existed?    We  must   answer  this  question  in  the    negative. 
There  Is  no  claim  that  he  participated  in,  or  was  even  presentat  the  time 
if  making,  the  contract  of  hire;  nor  that  he  had  any  authority  ttj  modify 
hat  contract  or  make  a  new  one.     The  case  is  quite  similar  in  principle 
•)  Crocker  r.  Gullifer  (44  .Maine,  491),  where  one  of  the  drivers  had  a  con- 
lUtonal  interest  in  the  hor>e3  and  consented  to  the  diversion;  but  It  was 


212      NEGLECT   OF   DUTIES   REQUIRING   ORDINARY   CARE. 

may  sometimes  arise  by  implication,  and  a  question  fre- 
quently arises  as  to  whether  such  authority  can  be  implied 
or  not  (2)). 

Where   the    management  of   anything  is  conducted  by 

[163]     another  other  than  the  owner,  the  owner  is  prima 

facie  responsible.    The  owner  may  rebut  thispresumption  by 

[164]     showing  that  the  person  engaged  in  the  management 

was  not  his  servant  (q),  but  was  the  servant  of  somebody 

(p)  Simmons  v.  Monier,  29  Barb.  419  another  man   drive   his  master's  cart, 

(servant  employed  another  man  to  throw  master  held  liable ) ;  [post,]).  236] 
snow  off  a  house,  master  held  liable):  (q)  Bryne  v.  Boadle,  2  H.  &C.  721;  83 

Booth  V.  Mister,  7  C.  &  P.  66  (servant  let  L.  J.  Ex.  13;  Scott  v.  London  Dock  Co., 

held  that  the  defendants  were  liable  for  their  value,  notwithstanding  they 
were  accidentally  destroyed  by  fire  without  the  neglect  or  fault  of  any 
one." 

Where  a  driver  deviates  somewhat  from  the  usual  route  on  his  own 
account  and  leaves  the  team  unhitched  so  that  they  run  away  injuring 
plaintiff  the  master  is  liable. —  Ritche  v.  Waller,  63  Conn.  155;  28  Atl. 
Kep.  29. 

So  where  a  driver  uses  a  team  without  special  permission  (Loving- 
ston  V.  Banchens,  34  111.  App.  544),  or  endeavors  to  pass  a  vehicle  in 
front,  at  the  request  of  the  passenger  driven  by  him  (Richardson  v.  Van 
Ness,  53  Hun,  267;  6  N.  Y.  S.  Rep.  618).  See  Hickey  v.  Merchants'  &  M. 
T.  Co.,  152  Mass.  39  ;  24  N.  E.  Rep.  860. 

But  where  the  facts  show  the  acts  of  the  servant  to  be  outside  his 
regular  employment  the  master  is  not  liable.  See  Dells  v.  Stollenwerk, 
78  Wis.  339;  47  N.  W.  Rep.  431;  Thorp  u.  Minor,  109  N.  C.  152;  13  S. 
E.  Rep.  702;   Chicago  City  Ry.  Co.  v.  Mogk,  44  111.  App.  17. 

(k)  "  The  doctrine  of  this  case  (Puryear  v.  Thompson,  5  Humph.  397), 
ignores  the  principle  that  if  the  master  sets  in  motion  an  agency  that  pro- 
duces a  wrong  he  is  liable  for  all  the  consequences,  and  if  the  doctrine  was 
established,  a  master  could  never  be  held  chargeable  when  the  act  was 
in  violation  of  his  orders." —  Wood  on  Master  and  Servant,  p.  579. 

(p)  The  Mayor  v.  Bailey,  2  Den.  433;  Suydam  v.  Moore,  8  Barb.  358: 
Wichtrecht  v.  Fassnacht,  17  La.  Ann.  166. 

The  author  intended  to  cite  the  case  of  Althorf  v.  Wolfe,  22  N.  Y. 
355,  instead  of  Simmons  v.  Monier,  29  Barb.  419,  though  the  latter  illns- 
trates  the  same  principle.  In  that  case  it  was  held  that  where  a  servant 
employed  to  work  upon  a  farm  by  the  month  directs  his  son,  an  infant 
under  his  control,  to  do  an  act  upon  the  farm  which  is  within  the  scope 
of  the  servant's  employment,  such  act  will  be  considered  the  act  of  the 
servant,  and  if  another  pc!rson  sustains  damage  by  the  negligent  manner 
in  which  the  act  was  performed,  the  master  is  liable. 


MASTIOU    AM)    SKUVANT 


CONTRACTOK. 


213 


[165]  else  (/•).  Tbia  may  of  coiirso  appoiir  either  from 
iho  plaiutiff' s  own  caso  or  tho  defendant's,  and  may  citlu-r 
be  made  to  appear  from  direct  evidence  or  from  evidence 
as  to  the  usual  course  of  business.  Thus,  where  it  is  tho 
U8ual  course  of  business  to  employ  :i  contractor  to  do  ccr- 
taiD  work,  no  presumption  arises  that  the  work  is  being 
done  by  the  servants  of  the  owner  of  the  property  (.s). 

Tho  question  who  is  tho  master  of  a  person  engaired  in 
doing  tho  act  is  one  of  frequent  difficulty  (0»  and  the 
difficulty  does  not  seem  to  be  removed  by  saying  that  he  is 
the  master  whose  will  tho  servant  represents  (it). 

Where  a  master  allows  his  servant  to  be  hired  i)y  an- 
other, he  remains  liable  to  tho  hirer  (./;)  and  to  strangers 


S  H.  A  C.  6'JO;  ,U  h.  J.  Ex.  2-20.  Also  in 
OSMI  of  cab  driver  and  proprietor,  sco 
Fowler  t-.  I>ock,  41  L.  J.  C.  P.  '.)lt;  L.  11.  7 
C.  P.  272;  KliiRf.  Spurr,  L.  R.  SQ.R.  104; 
Vonibleg  v.  Smith,  L.  II.  2  Q.  B.  D.  279; 
48  U  J.  Q.  B.  470;  in  cawos  of  shlp- 
oimora  ami  caplaliifl,  sec  Steel  v.  Lester, 
47  L.  J.  U.  v.  43;  L.  li.  3  C.  P.  D.  121; 
Laufbor  v.  Forrester,  5  B.  &  O.  547 
(owner  of  carriage  hired  horses  from 
•table-keeper  who  provided  driver); 
Brady  r.  (Jilos,  1  M.  &  Bob.  404  (qacstlon 
for  the  Jury  whose  Hcrvant  the  driver 
U);  quirre  as  to  authority  of  this  case, 
aM  Macdonnell  on  Mjister  and  Servant, 
p.  MB;  Qunrinan  v.  Burnett,  f>  M.  &  W. 
499  (owner  of  uirriu^'e  jol^biuK  hor^ica 
not  iUblo  for  acts  of  driver,  unless  he 
onlers  him  to  drive  In  u  particular  man  - 
ner,  mo  M'lJiughlln  i>.  Prior,  4  M.  <%  G. 
48) ;  Dnyrcll  r.  Tyrer,  28  L.  J.  Q.  B.  52 ;  E. 
B.A£.  KI9  (lessee  of  ferry  hired  tug  and 
enw  of  defendant,  plulntlll  contracted 
with  lesHOu.crew  ncKllgeut,  held  defend- 
ant liable,  see  Fenton  v.  Dublin  Steam 
Pneket  Co.,  8  Ad.  A  E.  S36).  It  may 
hen  be  observed  that  If  the  plaintiff 
obooaet  to  accept  cumpcusatlon  from 
Ihe  driver  of  the  vehicle,  under  C  &  7 
VIct,  c,  *1,  8.  28,  he  cannot  afterwards 
vcr  against  tho  driver's  employers; 
.'ht  r.  I/>nuon  Omnibaa  Co.,  L.  U.  2 
>.  ii.  1).  27'J. 

(r)  Shields   f.    Edinburgh    Ry.    Co., 
Uny,  254  (defendant  lent  a  van  to  a  per- 


son who  put  his  own  horse  In,  and 
drove  by  his  own  servant,  held  the  de- 
fendants, although  owners,  were  not 
liable). 

(s)  Welfare  v.  London  &  Brighton  Ry. 
Co.,  L.  R.  4  il  B.  6!)3 ;  38  L.  J.  (^  B.  241. 

(0  Lucy  V.  Ingram,  6  M.  &  W.  302; 
Genl.  Sicam  Nav.  Co.  r.  British  and 
Colonial  Steam  Nav.  Co.,  L.  R.  4  Ex.  Ch. 
238  (pilot  compulsorily  taken  on  board, 
not  servant) ;  Corbln  v.  American  Mills, 
27  Conn,  274  (plaintiff  contracted  with 
defendant  to  build  a  dam  with  stono 
which  ho  obtained  as  jtart  payment  of 
another  contract  to  remove  tho  stone  by 
blasting.  Ho  and  his  men  were  to  bo 
paid  by  the  day,  the  defendant  furnish- 
ing tho  powder  fur  blasting  and  super- 
intending the  building  of  tho  dam,  but 
having  no  control  over  the  blasting, 
held,  not  a  servant) ;  Stevens  v.  Sijuires, 
6  N.  Y.  4:J5  (B.  sent  his  porter  to  remove 
a  box  from  A.'s  store,  which  A.  had  sold 
to  him.  A.  gave  permission  to  remove 
it;  held,  porter  servant  of  B.  not  A.); 
Merrick  v.  Brainord,  38  BarL.  574  (car- 
rier cmiiloycd  a  low- boat,  persons  In 
charge  negligent,  held  carrier  liable); 
Murphy  v.  Caralli,  3  II.  &  C.  41)2  (ware- 
housemen having  full  control  directed 
defendant's  servants  to  pile  bale  of 
Cotton,  held,  servants  of  warcbouscmon 
only). 

(u)  See  Sboarman,  s.  73. 


214       NEGLECT    OF    DUTIES    REQUIRING    ORDINARY    CARE. 

(?/),  for  negligence  of  such  servant;  and  even  where  that 
other  himself  selects  the  servants,  although  the  master 
might  not  be  liable  for  mere  incompetency,  yet  he  would 
be  so  for  negligence  (z).  If  the  master  abandons  all  con- 
trol over  the  servant,  and  all  right  to  discharge  him,  and 
these  rights  are  taken  by  the  hirer,  of  course  the  servant 
becomes  the  servant  of  the  hirer. 

In  order  to  render  a  person  liable  for  the  acts  of  another 
employed  by  him  to  do  a  lawful  act,  the  relation  of  master 
[166]  and  servant  must  exist  (a).  Where  such  relation 
does  not  exist  (but  the  person  employed  is  what  is  called 
a  "  contractor")  it  is  presumed  that  the  person  employed 
was  employed  to  do  the  act  in  a  reasonable  and  careful 
manner,  and  if  he  does  not  do  so,  his  employer  is  not 
answerable  (6). 

(x)  Holmes  v.  Onion,  2  C.  B.  N.  S.  790  Angus  &  Co.   v.   Dalton,  48  L.  J.  Q.  B. 

(thatching)  225  ;  L.  R.  4  Q.  B.  D.  162 ;  6  App.  Cas.  740; 

(?/)  Dalyell  v.  Tryer,  El.  B.  &  El.  S99  Hughes    v.  Percival,   S   App.  Cas.  444; 

(crew  hired,  paid,  and  controlled  by  de-  [infra]. 

fendant,   steamer  let  out  to  H.,  held,  (6)  Butler  v.  Hunter,  7  H.  &  N.  826; 

defendant  liable).  31  L.  J.    Ex.  214  (owner  of  house  and 

(,-)  HolmeBv.  Omou,  supra.  builder).    See  remarks  of  Lord  Black- 

(a)  The  case  of  employing  another  to  burn  on  this  case  in  Hughes  v.  Percival, 

do  an  act  from  which  injury  must  flow,  supra.    Peachy  v.  Rowland,  13  C.  B.  182 

unless  care  be  taken,  is  considered  in  (man  employed  to  make  a  drain;  but  see 

Oh.  ni. ;  Bower  v.  Peat,  L.  R.  1  Q.  B.  D.  Sadler  v.  Henlock,  4  El.  &  Bl.  570;  24  L. 

321 ;  45  L.  J.  Q.  B.  446;  Tarry  v.  Ash  ton,  J.  Q,  B.  138) ;  Cuthbertson  v.  Parsons,  12 

L.  R.  I.  Q.  B.  D.  314;  45  L.  J.  Q.  B.  260;  0.    B.    304    (commissioners    employed 


(y)  Ames  v.  Jordan,  71  Me.  540;  36  Am.  Rep.  352;  Crockett  v.  Calvert, 
8  Ind.  127;  Joslin  v.  Grand  Rapids  Ice  Co.,  50  Mich.  516;  45  Am.  Rep.  54; 
Donovan  v.  Laing,  4  Reports,  317  (1893);  1  Q.  B.  629;  Illinois  Cent.  B. 
Co.  V.  King,  69  Miss.  852;  13  So.  Rep.  824. 

(a)  Pickens  v.  Diecker,  21  Ohio  St.  212;  Pawlet  v.  Rutland,  etc.,  K. 
Co.,  28  Vt.  297;  McGuire  v.  Grant,  25  N.  J.  L.  257;  Blake  v.  Ferris,  5  N. 
Y.  48;  Bathe  v.  Decatur  Co.  Ag.  Soc,  73  la.  11;  34  N.  W.  Rep.  484;  An- 
drews V.  Boedecker,  27  111.  App.  30;  affirmed,  126  111.  605;  18  N.  E.  Rep. 
C51;  Sawyer  v.  Martins,  25  111.  App.  521;  Marsh  v.  Hand,  120  N.  Y.  315; 
.'4  N.  E.  Rep.  463;  Muse  v.  Stern,  82  Va.  33;  Southern  Ex.  Co.  v.  Brown,. 
(17  Miss.  260;  7  So.  Rep.  318;  8  So.  Rep.  425;  Campbell  u. Trimble,  75  Tex. 
270;  12  S.  W.  Rep.  863;  James  v.  Muehleback,  34  Mo.  App.  512;  Wyllle 
V.  Palmer,  63  Hun,  8;  17  N.  Y.  S.  Rep.  434;  Wells  v.  Washington  Market 
Co.,  19  D.  C.  385. 


MA8TKU  AM)  SERVANT CONTKACTOR.        215 

If  tlio  nuistci-  himself  interferes  with  thi*  work  lie  may 
render  himself  liable.     The  owner  of  premisea  employeJ  a 

•(«am   CUK,   owntTH    held    not    liable);  (surveyor    of    highways   employed  nn- 

Urowo  «'.   Arcrlngton  Cotton  Co.,  3  II.  otht-r  person  and  his  men,  and  dhl  nut 

AC.  SlI  (l)iillding  erected  by  contract,  liiterftTe;  held,  they  wore  not  servants 

owner  notlnterforlnu) ;  Taylor  r.iJreen-  of  defendant), 
halgh.  L.  U.  0  ti.  n.  4S7 ;  43  L.  J.  Q.  H.  1C8 

(ft)  *•  When  the  work  Is  not  In  Itself  necessarily  a  nuisance,  and  the 
Injury  results  from  the  nesillgence  of  such  contractor  or  his  servants  In 
the  execution  of  it,  the  contractor  alone  Is  liable,  unless  the  owner  is  In 
default  In  cniployinij  an  unskillful  or  improper  person  as  the  contrac- 
tor."—Wharton  on  Ne^ll^ence,  «;  818.  See  Norwalk  Gaslight  Co.  v. 
Borough  of  Norwalk,  ()3  Conn.  495;  28  Atl.  Rep.  32;  Sweeny  r.  Murphy, 
32  La.  Ann.  Ci'S;  Smith  v.  Simmons,  103  Pa.  St.  3'.';  Cuff  v.  Newark,  etc., 
B,  Co.,  35  N.  J.  L.  17;  Wood  v.  Indian  School  District,  44  la.  27;  Pawlet 
r.  Rutland,  etc.,  R.  Co.,  28  Vt.  2;i7;  Coomcs  r.  Houghton,  102  Mass.  211 ; 
King  F.  New  York,  etc.,  R.  Co.,  CO  N.  Y.  182;  Knoxville  Iron  Co.  v.  Dob- 
son,  7  Lea,  3r>7;  Martin  v.  Tribune  Ass.,  30  Ilun,  391;  Davie  w.'Levy,  39 
La.  Ann.  551;  2  So.  R.p.  395;  Harrison  v.  Kiser,  79  Ga.  688;  4  S.  E.  Rep. 
S30;  Brown  r.  McLeish,  71  la.  381;  32  N.  W.  Rep.  385;  Maltbie  v. 
Bolting,  2C  N.  Y.  S.  Rep.  903;  G  Misc.  R«  p.  339;  Mahon  v.  Burns,  29  N. 
Y.  8.  Uep.  <;82;  9  Misc.  Rep.  2L':i;  Charlcbois  v.  Gogebic  &  M.  R.  Co.,  91 
Mich.  5;i;  51  N.  W.  Rep.  812;  Bibb  r.  Norfolk  &  W.  R.  Co.,  87  Va.  711  ; 
14  S.  E.  Rep.  1(53;  Chartiers  Valley  Gas  Co.  v.  Waters,  123  Pa.  St.  220; 
28  W.  N.  C.  175;  10  Atl.  Uep.  423;  Roemer  v.  Striker,  21  N.  Y.  S.  Rep. 
1090;  2  Misc.  Rep.  573.     See  cases  collated  in  41  C.  L.  J.  C. 

As  where  an  injury  is  caused  by  the  falling  of  a  wall  (Engel  v.  Eureka 
Gub,  137  N.  Y.  100;  82  N.  E.  Rep.  1052),  or  the  laying  of  gas  mains, 
(Chartiers  Valley  Gas  Co.  v.  Lynch,  118  Pa.  St.  302;  12  Atl.  Rep.  43r)), 
or  the  unnecessary  laying  of  loose  rails  in  building  a  street  railway 
(Fulton  County  St.  R.  Co.  v.  McConnell,  87  Ga.  75<;;  13  S.  E.  Rep.  828), 
or  the  dropping  of  bricks  and  mortar  while  erecting  a  building  on  ad- 
joining premi.-*e3  (Pye  v.  Faxon,  150  Mass.  471;  31  N.  E.  Rep.  040),  or 
the  negll;ient  running  of  a  locomotive  engine).  Miller  v.  Minnesota  & 
N.  W.  Ry.  Co.,  76  la.  655;  39  N.  W.  Rep.  188;  Wabash,  St.  L.  &  P. 
Ry.  Co.  V.  Farver,  111  Ind.  195;  12  N.  E.  Rep.  590,  or  the  stretching  of 
canvas  bo  that  its  flapplt.g  frightens  horses  in  the  street. —  McCann  v. 
KlDgu  Co.  El.  R.  Co.,  19  N.  Y.  S.  Rep.  068. 

A  person  carrying  on  the  business  of  slating  roofs  was  employed  to 
make  repairs  on  the  roof  of  a  church,  and  while  his  men  were  so  engaged 
In  making  such  repairs  they  carelessly  allowed  a  ladder  in  use  by  them 
to  be  blown  down  by  the  wind,  it  fell  upon  plaintiff  and  Injured  hlin.  In 
"  suit  against  the  parish  it  was  held  that  the  slater  was  an  independent 
contractor  and  the  defendant  not  liable.—  McCarthy  v.  Portland  Second 
Parish,  71  Me.  318;  36  Am.  Rep.  320. 


216      NEGLECT   OF   DUTIES   KEQUIRING   ORDINARY   CARE. 

person   to   make  a   drain  to  the  common  sewer,  and  the 
workmen  placed  gravel  on  the  highway  to  the  injury  of  the 

A.  contracted  to  have  B.  cut  timber  on  A.'s  land  at  a  certain  price  per 
foot  and  deliver  it  at  the  mouth  of  a  river,  using  A.'s  dams  in  driving  the 
logs  if  he  chose.  By  B.'s  unreasonable  use  of  A.'s  dams  C.'s  lands  were 
flowed,  but  A.  had  nothing  to  do  with  cutting  or  driving  the  logs.  It 
was  held  that  A.  was  not  liable  for  C.'s  injury.—  Carter  u.  Berlin  Mills, 
58  N.  H.  52:  42  Am.  Rep.  572. 

B.  undertook  to  repair  the  cornice  of  defendant's  hotel.  The  means 
to  be  employed  were  left  entirely  to  the  former.  He  so  negligently  pre- 
pared his  scaffold  that  in  a  high  wind  a  plank  fell  and  injured  plaintifi. 
On  the  trial  the  plaintiff  was  dismissed  on  the  ground  that  defendant  was 
not  liable  for  the  negligence  of  B.  as  he  was  a  contractor  and  not  an 
employe.  This  was  held  not  error. —  Hexamer  v.  Webb,  101  N.  Y.  377;  4 
N.  E.  Rep.  755. 

But  where  the  owner  exercises  control  over  the  mode  of  doing  the 
work  (Cincinnati  v.  Stone,  5  Ohio  St.  38;  Kimball  v.  Cushman,  103  Mass. 
194;  Chicago  v.  Dermody,  61  111.  431 ;  Eaton  v.  Railroad  Co.,  59  Me.  620; 
Clapp  V.  Kemp,  122  Mass.  481 ;  Lancaster  Ave.  I.  Co.  v.  Rhoads,  116  Pa. 
St.  377;  9  Atl.  Rep.  852;  Larson  v.  Metropolitan  St.  Ry.  Co.,  110  Mo. 
234;  19  S.  W.  Rep.  416;  Savannah  &  W.  R.  Co.  v.  Phillips  (Ga._),  17  S. 
E.  Rep.  82;  Kingston  &  B.  R.  Co.  u.  Campbell,  20  Can.  S.  C.  R.  605; 
Norwalk  Gaslight  Co.  v.  Borough  of  Norwalk,  63  Conn.  495;  28  Atl.  Rep. 
32  (Mumby  v.  Bowden,  25  Fla.  454 ;  6  So.  Rep.  453)  ;  or  reserves  the 
power  to  remove  servants  (Arctic  Ins.  Co.  v.  Austin,  69  N.  Y.  470); 
though  this  is  not  conclusive  (Cuff  v.  Newark,  etc.,  R.  Co.,  35  N.  J.  L.  17); 
or  performs  part  of  the  work  (Griffiths  v.  Wolfram,  22  Minn.  185),  he 
will  in  general  be  liable. 

This  rule  applies  where  the  work  is  in  the  hands  of  a  sub-contractor 
(St.  Louis  &  C.  Ry.  Co.  v.  Drennan,  26  111.  App.  263;  Hart  v.  Ryan,  6  N. 
Y.  S.  Rep.  921);  or  of _^a  person  employed  by  an  employe;  provided  the 
master  retains  control.  —  Bucki  v.  Cone,  25  Fla.  1;  0  So.  Rep.  160; 
Mangan  v.  Foley,  33  Mo.  App.  250. 

Where  a  min<i)g  company  contracted  for  the  removal  of  ore  and  re- 
served to  itself  such  arrangements  as  were  necessary  for  the  protectloa 
of  workmen,  it  was  held  liable  for  such  injuries  as  happened  to  the  em- 
ployes of  the  contractors  without  the  fault  of  the  employes.  — Lake 
Superior  Iron  Co.  v.  Erickson,  39  Mich.  492. 

And  where  a  contractor  agreed  with  the  owners  of  a  mine  to  do  cer- 
tain work  therein,  the  owners  engaging  to  furnish  and  put  up  such  props 
and  supports  for  the  roof  of  the  mine  as  would  render  the  miners  secure, 
whenever  notified  by  the  contractor,  it  was  held  that  although  such 
notice  from  the  contractor  might  not  have  been  received  by  the  owners, 
the  latter,  if  they  had  actual  knowledge  that  such  supports  were  neces- 
sary, became  liable  in  damages  to  an  employe  of  the  contractor  who,  with- 


MASTKK  AND  SERVANT CONTUACTOU.        '211 

plaintiff.     The    ownor  liacl  been   iiifoiinetl    of  tlio   clun;;er 
aud  1j:ii1  liroraiticd  to  removo  tho  hc'ii[).     The  person  em- 


out  oegllceiice  on  bis  part,  had  been  injured  while  ut  worli  in  the  mine 
tbrouch  the  want  of  such  supports  In  the  roof.  —  Kelly  v.  Howell,  41 
Ohio  St.  43t<. 

Defendant,  a  rallwny  corjioration,  made  a  contract  with  A.  whereljy 
be  waa  to  liave  the  entire  cliar^^e  in  defendant's  freit^lit  yard  of  the  inak- 
ioK  up  of  frei;;lit  trains,  etc.,  to  be  paid  a  certain  sum  per  ton  of  freiylit 
and  for  each  car  hauled  from  the  yard.  Defendant's  Huperintendent  was 
authorized  to  Bee  that  tlie  work  was  done  satisfactorily,  aud  if  it  were 
out  defendant  could  terminate  the  contract  at  twenty -four  hours'  notice. 
Tho  men  employed  In  the  yard  were  paid  by  A.  B.  sued  defendant  for 
iDJories  received  throui^h  the  negligence  of  train  men  in  tho  employ  of 
A.  It  was  held  that  A.  was  the  servant  of  defendants  and  not  an  inde- 
pendent contractor. —  Speed  w.  Atlantic,  etc.,  li.  Co.,  71  Mo.  30;5. 

Bat  a  rit;ht  reserved  in  a  contract  on  the  part  of  a  railroad  company 
tis  to  ihe  (piautity  of  work  to  be  done  or  the  condition  of  the  work  when 
completed  is  not  a  right  to  control  the  work  or  manner  of  doing  it. — 
Hughes  V.  Cincinnati,  etc.,  K.  C,  39  Ohio  St.  4G1. 

Aud  tliat  the  work  is  under  the  supervision  of  an  architect  selected  by 
the  owner  does  not  render  the  latter  liable  for  the  negligence  of  the  con- 
tractor.—  liobinson  v.  Webb,  11  Bush,  4G4. 

A  contractor  was  employed  to  make  certain  repairs  on  a  school-house 
under  the  directions  of  a  superintendent  named  by  the  district.  It  was 
«xpre8?-ly  agreed  that  the  contractor  should  not  enter  upon  the  work 
'  the  school  was  dismissed  for  the  season.  The  sui)erinlendent 
-en  by  the  district  was  the  architect  of  the  contemplated  improve- 
ments, ami  was  authorized  only  to  direct  the  contractor  as  to  the  manner 
in  wblcb  the  work  was  to  be  executed.  The  contractor,  by  permission 
of  the  superintendent,  began  the  work  before  the  school  was  dismissed, 
•••"1  performed  it  so  negligently  that  one  of  the  school  children  was 
red  In  conseciuence.  It  appeared  that  two  of  the  school  board  had 
V. .tiled  the  hchool-house  after  the  work  bad  been  begun,  but  did  not  inter- 
fere or  direct  it  to  be  8toj)ped.  In  an  action  by  the  injured  child  against 
tbe  Hcbool  district  to  recover  damages  for  the  injury  done  him,  it  was 
beld  that,  as  the  contractor  was  at  the  time  of  tlie  accident  exercising  an 
Independent  employment,  the  school  district  was  not  liable  for  his  negli- 
gence.—School  District  of  City  of  Erie  o.  Fuess,  98  Pa.  St.  COO. 

The  fact  that  the  owner  furnishes  material  for  the  work  does  not  affect 
bisUtbiliiy. 

Where  B.  agreed  for  a  specified  sum  to  dig  a  ditch  and  lay  pipe  for  A., 
A.  to  furnish  the  pipe  and  boxing,  but  to  have  nothing  further  to  do  with 
the  work,  it  was  held  that  B.  was  an  independent  contractor,  for  whose 

rllgenre  in  leaving  the  ditch  unprotected  whereby  C.  sustained  an 
ry,  A.  was  not  responsible.—  Smith  v.  Simmons,  103  Ta,  St.  32. 


218      NEGLECT    OF   DUTIES    REQUIRING   ORDINARY   CARE. 

ployed  paid  a  man  for  removing  some  of  the  gravel  and 
charged  the  owner  for  such  payment  on  account.     It  was 

And  when  the  contract  is  silent  as  to  the  mode  of  doing  the  work 
(Aston  V.  Nolan,  63  Cal.  269),  or  the  owner  gives  up  all  control  to  the 
contractor  (Fuller  v.  Citizens'  Bank,  15  Fed.  Rep.  875),  the  former  is  not 
liable  for  the  negligent  acts  of  the  latter. 

But  when  an  employer  retains  control  over  the  mode  and  manner  of 
doing  a  specified  portion  of  the  work  only,  and  an  injury  results  to  a 
third  person  from  the  doing  of  some  other  portions  of  the  work,  the 
contractor  alone  is  liable. —  Hughes  v.  Railway  Co.,  39  Ohio  St.  461. 
And  so  where  the  work  is  done  according  to  specified  plans  and  subject  to 
the  inspection  of  the  owner's  engineer,  the  contractor  alone  is  liable.— 
Casement  v.  Brown,  148  U.  S.  615;  13  S.  Ct.  Rep.  672. 

Municipal  Corporations. —  If  the  work  is  of  such  a  character  that  in 
the  performance  of  it  injury  is  likely  to  result  to  others,  or  the  work  would 
of  itself  constitute  a  nuisance,  the  employer  is  liable  (Robbins  v.  Chicago, 
4  Wall.  657;  Clark  v.^Ery,  8  Ohio  St.  358;  Brusso  v.  Buffalo,  90  N.  Y.  679; 
Water  Co.  v.  Ware,  16  Wall.  566,  576;  Dressell  v.  Kingston,  32  Hun, 
533),  though  he  exercises  no  control  over  the  work. 

The  rule  applies  as  well  to  municipal  corporations.  A  city  employed 
a  contractor  to  grade  a  street.  He  left  a  cut  intended  for  a  culvert 
unlighted,  and  plaintiff  not  being  negligent  fell  in  on  a  dark  night  and 
was  injured.  It  was  held  that  an  action  against  the  city  was  main- 
tainable, although  it  had  no  control  of  the  workmen,  and  in  its  agree- 
ment with  the  contractor  stipulated  that  he  should  be  liable  for  accidents 
occasioned  by  his  negligence. —  Wilson  v.  City  of  Wheeling,  19  W.  Va. 
323;  42  Am.  Rep.  780.  See  Bowen  u.  City  of  Huntington,  35  W.  Va.  682; 
14  S.  E.  Rep.  217;  Hepburn  v.  City  of  Philadelphia,  149  Pa.  St.  335;  24 
Atl.  Rep.  279;  30  W.  N.  C.  190;  Kollocku.  City  of  Madison,  84  Wis.  458; 
54  N.  W.  Rep.  725;  City  of  Birmingham  v.  Lewis,  (Ala.),  9  So.  Ri-p. 
243.  But  the  city  is  not  responsible  where  the  independent  contractor 
is  not  performing  or  neglecting  a  municipal  duty. —  Susquehanna  Depot  o. 
Simmons,  112  Pa.  St.  384;  56  Am.  Rep.  317;  City  of  Halifax  v.  Lordly, 
20  Can.  S.  C.  R.  505. 

Where  trustees  of  water- works  in  a  city  authorized  and  directed  the 
digging  of  trenches  in  the  streets  for  the  purpose  of  laying  water  pipes 
in  pursuance  of  a  previous  ordinance  of  council,  and  it  was  made  the 
duty  of  the  superintendent  to  cause  such  trenches  to  be  dug  and  mains 
laid,  the  city  was  held  liable  for  his  negligent  acts  in  doing  the  work 
causing  an  injury,  though  the  trustees  individually  while  the  work  was 
being  done  notified  the  superintendent  that  they  would  have  nothing 
further  to  do  with  the  work. —  City  of  Ironton  v.  Kelly,  38  Ohio  St.  50- 

And  where  a  city  contracted  for  the  construction  of  a  cistern  in  a 
street,  and  before  the  cistern  was  completed  a  horse  fell  into  it  and  was 
killed  for  want  of  suflacient  protection,  it  was  held  that  the  city  was 


MASTKK    AM)    SKIiVANT CONTICACTOU.  219 

held  that  tho  owner  was  liable,  on  the  ground  that  lio  had 
him'self  intrifercd  with  llio  woi  k  (*•). 

Where  tho  employer  of  the  coutraetor  ha.s  no  duties,  hut 

(c)  Burgess  V.  Gray,  1  C.  H.  578. 


lltble  for  tho  loss  of  the  horse,  altliouf^h  it  did  not  reserve  or  ext-rclse 
any  contiol  over  the  nmnuor  of  doiii;:  tlie  work  except  to  see  that  it  was 

1.'  according  to  tho  specillcatious  wliich  were  part  of  the  contract.— 
..iclevllle  p.  N.-udlns,  41  Ohio  St.  4(;5. 

Where  a  city  contractt-d  in  writing  with  A.  for  the  erection  of  water- 
works*, anti  the  contract  was  assijjned  l)y  A.  to  B.,  and  by  B.  to  C,  it  was 
held  that  tho  city  was  liable  for  the  death  of  a  party  occasioned  by  the 
negligence  of  C.'s  employes  while  thay  were  blasting  in  trenches  dug  in 
the  streets  for  water  pipes,  though  the  city  had  no  control  over  the  work 

'■.'8  employes. — City  of  Logansport  v.  Dick,  70  Ind.  G5;  30  Am.  liep. 

The  owner  can  not  escape  liability  for  maintaining  a  nuisance  on  his 
premises  by  putting  the  work  in  the  hands  of  a  contractor. —  Congn-ve  r. 
Smith,  18  N.  Y.  T'.t ;  Water  Co.  v.  Ware,  IG  Wall.  SGC;  Silvers  v.  Nord- 
llnger,  30  Ind.  53;  Sturges  v.  Society,  etc.,  Theological  Ed.  at  Cambridge, 
180  Mass.  414;  Gorbam  v.  Gross,  125  Mass.  232. 

Unless  puch  nuisance  is  imputable  to  the  negligence  of  the  contrac- 
tor.—Cuff  V.  Newark,  etc.,  R.  Co.,  35  N.  J.  L.  17:  Kellogg  v.  Payne,  21 
la.  £75. 

Nor  can  a  municipality  avoid  responsibility  for  dangerous  streets  by 

■ng  the  work  of  improving  them  under  the  control  of  contractors. — 

of  Sterling  v.  Schiffmacher,  47  111.  App.   141;  City  of  B.  alrice   v. 

1.  41  Neb.  214;  69  N.  W.  Rep.  770;  City  of  Al)il('ne  v.  Cowpeithwait, 

i\;in.  324;  34  Pac.  Rep.  795.  Especially  where  it  retains  supervision. — 
Kulwlckl  V.  Munro,  95  Mich.  28;  54  N.  W.  Rep.  703. 

Where  the  obstruction  or  defect  caused  or  created  in  the  street  is 
purely  collateral  to  the  work  contracted  to  be  done,  and  is  entirely  the 
result  of  the  wrongful  act  of  the  contractor  or  his  workmen,  the  rule  Is 
that  the  employer  is  not  liable;  but  where  the  obstruction  or  defect  which 
occasioned  the  injury  results  directly  from  the  acts  which  the  contractor 
ap'eed  and  was  authorized  to  do,  the  person  who  employs  the  con- 
tractor and  authorizes  hira  to  do  those  acts  is  equally  liable  to  the  party 
injured.— Water  Company  v.  Ware,  IG  Wall.  57(;;  Robbins  r.  Chicago, 
4  Wall.  679;  Chicago  v.  Robl)ins,  2  Black,  418. 

The  owner  is  liable  for  a  continuing  nuisance. —  Boswell  v.  Laird,  8 
Cal.  49;  Osb.-rn  v.  Union  Ferry  Co.,  53  N.  Y.  G29. 

Taking  down  the  walls  of  a  burned  building  is  not  the  abatement  of  a 
nuisance  nor  the  commission  of  a  nuisance,  and  if  the  owner  thereof 
employ  a  contractor  to  do  the  work,  he  is  not  liable  for  such  contractor's 
negligent  performance  of  it.— Dillon  r.  Hunt,  82  Mo.  150. 


220      NEGLECT   OF  DUTIES   REQUIRING  ORDINARY  CARE. 

the  contractor  has,  the  contractor  is  liable ;  but  where  the 
employer  has  a  duty  towards  the  plaintiff  he  cannot  dele- 
gate its  performance  to  a  third  party  (d).  A  frequent 
illustration  of  this  is  found  in  case  of  hiring  of  carriages, 
where  it  is  a  question  whether  the  driver  is  the  servant  of  the 
[167]  owner,  or  whether  if  he  was  a  contractor,  yet  the 
owner  so  interferes  as  to  render  himself  liable  (e). 

[168]  Care  should  be  taken  in  applying  this  rule  to 
avoid  two  errors.  In  the  first  place,  it  should  not  be  for- 
gotten that  [169]  where  a  man  has  a  personal  duty  to 
perform,  he  cannot  escape  its  performance  by  leaving  it  to 
some  one  else  to  do,  [170]  and  in  the  above  cases  there 
was  no  duty  delegated;  and  in  the  second  place,  that  if  the 
person  who  has  employed  a  contractor,  has  nevertheless, 
impliedly  promised  the  plaintiff  that  a  certain  state  of 
things  exists  (as  that  a  stand  or  bridge  is  safe)  it  becomes 
such  person's  duty  to  see  that  it  is  safe,  and  he  is  liable 
notwithstanding  he  has  employed  a  competent  person  (/). 

[171]  A  *'  contractor  "  is  one  who  engages  to  do  a  cer- 
tain work  for  another,  but  is  free  to  use  such  means  to 
accoQiplish  the  result  as  he  may  see  fit  (^),  and  it  is  not 
conclusive  evidence  of  service  or  no  service  whether  he  is 
paid  by  the  day  or  by  the  job  (Ji).     The  fact  that  a  person 

{,d)  Hughes  v.  Percival,  supra.  (f)  See  the  cases  post,  Oh.  in,,  s  6, 

(e)  M'Laughlln  r.  Pryor,  4  M.  &  G.  48  Corporations;  and  see  Francis  v.  Cock- 

(action  for  trespass  in  driving  a  carriage  erell,  L.  R.  5  Q.  15.  501 ;  39  L.  J.  Q.  B.  291, 

with    postillions   against  the  plaintifiE's  Grote  w.  Chester  Ry.  Co.,  2  Ex.  251. 

gig) ;  Laugher  v.  Pointer,  5  B.  &  0.  547  (g)  Allen  v.  Hayward,  7  Q.  B.  960; 

(defendant,   owner  of    carriage,   hired  Sadler  v.  Henlock,  4  El.  &  B.  570. 

horses,  owner  of  horses  sent  his  driver  (h)  Per  Crompton,  J.,  Sadler  t>.  Hen- 

who  was  negligent,  held,  defendant  not  lock,  supra;  [see  infra]. 

liable). 

(h)  Corbin  v.  American  Mills,  27  Conn.  274.  Payment  by  employer, 
of  contractor's  servants'  wages,  it  has  been  held,  does  not  neces.sarily 
make  the  employer  their  master. — Tibbits  v.  Knox,  etc.,  R.  Co.,  62  Me. 
437;  Geer  v.  Darrow,  Gl  Conn.  230;  23  Atl.  Rep.  1087.  Where  K.  con- 
tracted with  a  railroad  company  to  complete  an  abandoned  construction 
job  and  was  to  be  paid  for  it  what  the  labor  and  material  to  be  furnished 
by  him  should  cost  and  ten  per  cent  additional  as  compensation,  it  was 


MASTEU  AND  8EHVANT CONTUACTOU.        221 

fiuployeil  to  do  any  work  is  liuhle  to  dismiasal  by  hirt 
employer,  is  stronfij  evideuco  of  his  character  as  servant, 
and  not  contractor  (i),  but  not  conclusively  so  (/r). 
Hut  hero,  as  in  many  other  instances  to  which  reference 
has  already  boon  made,  the  difficulty  lies  rather  in  the  facts 
than  in  the  law.  Thus,  sometimes,  an  employer  limits  the 
control  of  the  person  employed  as  to  the  mode  in  which 
the  work  is  done,  though  not  as  to  the  choice  of  workmen; 
or  as  to  the  choice  of  workmen,  and  not  as  to  the  mode  of 
doing  the  work  ;  but  it  is  not  proposed,  as  stated  in  Chapter 
I.,  to  deal  with  questions  of  tliis  sort  which  depend  upon 
the  constructions  of  particular  contracts  rather  than  upon 
the  law  of  negligence. 

The  principle  is  now  well  established,  both  in  England 
and  America  (?),  although  after  along  course  of  conflicting 
decisions  in  both  countries,  that  the  employer  of  a  **  con- 
tractor "  is  not  responsil)le  for  the  negligence  of  the  con- 
[172]  tractor  or  his  servants  (tn),  (where  the  work  con- 
tracted to  bo  done  is  not  of  itself  dangerous)  (?i),  or  there 
is  no  duty  incumbent  upon  the  employer  to  do  the  thing 
himself  (o). 

The   same    rule    holds    with    respect    to  contractor  and 


(i)  Blako  f.  ThirBt,  2  H.  &  C.  20.    See  IG  C.  B.  MO  (contractor  cutting  throtiRh 

Oharlear.  Taylor,  L.  U.  3  C.  1".  1).  492.  road  Into  drain);  Ueedlc  r.  L.  &  N    W. 

(*)  Kecdio  r.  North  West  liy.  Co.,  4  liy.  Co.,   4    Ex.    244,  svpra   (contractor 

Kx.  144.  making  viaduct) ;  Peachey  v.  Kowland> 

(0  See  Shearman,  s.  70.  13  0.  IJ.  1S2  (earth  heaped  up  by  a  con- 

(»)  Allen   f.  Ilayward,  7  Q.  B.  960  tractor  so  as  to  bo  a  nuisance), 
(making  a  drain) ;  Uutlcrr.  Hunter,  7  n.  (n)  Tarry   v.   Ashton,  mUe,  214.    Or 

A  N.  W6  (architect  cnii)loylng  contractor  wrongful.    Sec  Ellis  r.  Shedlcld  Gas  Co., 

to  pull  down   i)arty-\vall) ;  Mllllgan  i\  2  Kl.  &  151.  707;  or  naturally  leading  to 

Wedge,  12  Ad.  &  K.  737  (butcher  employ-  danger.    Sec  Bower  v.  I'eate,  ante,  211. 
log  droTor) ;  Steele  r.  South  Eastern  Uy.,  (o)  See  infra. 


held  that  tbls  did  not  make  K.  the  servant  of  the  company,  and  that  the 
company  was  not  responsible  for  his  taking  trees  from  the  land  of  a 
third  party.— New  Orleans,  etc.,  R.  Co.  v.  Reese,  Gl  Miss.  681. 

The  fact  that  no  price  Is  flxed  and  no  specifications  made  as  to  the 
work  to  be  done  docs  not  render  a  contract  one  of  mere  hire  and  ser- 
TlC€.— Uexamer  w.  Webb,  101  N.  Y.  377;  i  N.  E.  Rtp.  755. 


222       NEGLECT    OF    DUTIES    EEQUIRING    ORDINARY    CARE. 

sub-coutractor,  if  such  sub-contractor  is  a  contractor  and 
not  a  servant  (p). 

(p)  Rapson  v,  Cubitt,  9  M.  &  W.  710  servantof  the  sub-contractor,  was  aeon- 
(club  committee,  builder,  gasfltter;.held  tractor) ;  Overton  v.  Freeman,  11  C.  B. 
builder  not  liable) ;  Knight  v.  Fox,  5  Ex.  867  (defendant  contracted  to  pave  a  dls- 
721  (railway  company  employed  con-  trict,  sub-contractor  to  pave  a  street, 
tractor  to  make  line,  sub  contractor  to  contractor  finding  stones  and  carts, 
make  bridge,  sub- sub-contractor  to  sup-  stones  negligently  lett  in  street,  con- 
ply  scaffolding,  sub -contractor  to  supply  tractor  not  liable) ;  Peason  t'.  Cox,  L.  E. 
lights  for  scaffolding;  injury  to  plaintiff  2  C.  P.  D.  369  (contractors  built  baild- 
from  negligence  with  respect  to  scaffold-  Ing  and  removed  boarding,  sub-con- 
ing; held  sub -contractor  not  liable,  as  tractor's  men  doing  interior  let  tool 
sub-sub-contraclor,  although  a  general  fall, held  contractor  not  liable);  [infra]. 


(p)  Upon  the  same  ground  the  contractor  is  relieved  of  liability  by 
placing  the  work  in  the  hands  of  a  sub-contractor. —  Cuff  v.  Newark,  etc., 
Px.  Co.,  35  N.  J.  L.  17,  574;  State  v.  Mersereau,  64  N.  Y.  138;  Scarbrough 
V.  Alabama  M.  Ry.  Co.,  94  Ala.  497;  10  So.  Rep.  31G;  City  of  Buffalo  v. 
Clement,  19  N.  Y.  S.  Rep.  846;  Parker  v.  Waycross  &  F.  R.  Co.,  81  Ga. 
387;  8  S.  E.  Rep.  871;  French  v.  Vix,  21  N.  Y.  S.  Rep.  1016;  30  Abb.  N. 
C.  158;  2  Misc.  Rep.  312. 

A.  had  a  contract  to  paint  a  dome.  He  employed  B.  to  erect  a  scaffold. 
The  scaffold  was  defective  and  A.'s  workman  sustained  an  injury  there- 
from, A.  knew  nothing  of  scaffolds.  In  a  suit  brought  against  A.  and 
B.  to  recover  damages  for  injuries,  it  was  held  that  B.  was  answerable 
therefor,  and  A.  was  not. —  Devlin  v.  Smith,  89  N.  Y.  470:  42  Am.  Rep. 
311,  reversing  25  Hun,  206. 

A.  operated  a  hod  elevator  machine  under  a  contract  with  the  builder 
who  was  erecting  a  building.  A.  furnished  the  boiler,  engine,  elevator, 
and  the  engineer  whom  he  superintended  and  paid.  Through  the  neg- 
ligence of  the  engineer  the  elevator  fell  and  injured  a  workman  engaged 
in  the  framing  who  was  employed  by  a  sub-contractor;  it  was  held  that 
the  engineer  was  A.'s  servant  and  that  A.  was  responsible  for  his  negli- 
gence.—  Gerlach  v.  Edelmeyer,  47  N.  Y.  Superior  Ct,  292. 

A.  was  employed  to  paint  a  church  and  he  gave  to  B.  the  contract  for 
the  frescoing.  A.  lent  B.  two  competent  men  who  were  sent  up  to  place 
the  planks.  A  painter  employed  by  B.  sustained  injury  from  the  break- 
ing of  one  of  the  planks.  The  planks  were  furnished  by  the  church  and 
the  painter  who  was  injured  sued  A.  on  the  ground  that  the  men  sent 
to  do  B.'s  work  should  have  detected  the  imperfection  in  the  plank.  It 
was  held  that  the  action  could  not  be  maintained. — Uitberner  v.  Rogers, 
CO  How.  N.  Y.  Pr.  35. 

But  where  one  employed  a  contractor  to  enter  upon  land  and  do  cer- 
tain work  and  it  turned  out  that  the  entry  was  a  trespass,  the  employer 
was  held  liable  for  trespass  committed  by  a  sub-contractor. —  Leber  v. 
Minneapolis,  etc.,  Ry.  Co.,  29  Minn.  256. 


MASTKi:    AM)    SEKVANT  CON  THA(T«  )l: . 


i'23 


The  mere  leeoramcndation  by  the  contractor's  employer 
of  a  servant  will  not  make  him  the  servant  of  the  cmpioyi-r, 
nor  will  the  more  cxpre^^^sion  of  a  preference  for  one  oftho 
contriu'tor's  servants  (7). 

As  has  been  already  said,  where  there  is  u  duty  imposed 
upon  or  implieiWy  undertaken  by,  the  employer  himself,  he 
is  liable  for  the  due  exorcise  of  such  duty  ;  and  where  an 
obligation  is  imposed  upon  any  person  by  law  he  cannot 
[173]  escape  from  it  by  employing  a  contractor.  Thus, 
where  a  statute  ordered  the  owner  of  land  to  make  a  drain, 
and  to  rclill  it  with  earth,  and  the  owner  employed  a  con- 
tractor who  neglected  properly  to  refill  the  drain,  it  was 
held  that  the  owner  and  not  the  contractor  was  liable  (r). 
And  where  there  is  a  duty  upon  the  lessee  of  premises  not 
to  leave  a  trap  door  open  it  is  no  answer  that  the  servant 
of  a  coal  merchant  left  it  open  (.s). 

If  the  emj^Ioyer  has  in  an}'  way  undertaken  a  duty  in 
ret*pect  of  the  work  which  ho  has  given  to  the  contractor  to 
do, he  must,  of  course,  perform  such  duty  with  reasonable 
care.  And,  if  he  undertakes  to  supply  the  contractor  with 
things  necessary  for  the  prevention  of  injury  to  third 
[174]  parties  and  injury  arises  from  his  neglect  to  do  so, 
he  will  be  liable  ((). 

So,  also,  it  has  often  been  held  that  the  employer  has  a 
duty  to  see  that,  after  the  contractor's  servants  have  left 


(7)  Qunrman  r.  Rarnett,  6  M.  &  W. 
490  (dcfcndnnt.s  a-skcd  for  n  jmrtlcular 
drlTor;  held  tiDt  tlulr  Borvnnt). 

(r)  Gray  r.  rullen,  T)  15.  &  S.  070;  M  L. 
J.  Q.  B.  2fi5;  rickard  r.  Smllh  (occupier 
of  refroDbment   room   lliible    for   coal 
■^Tchanl's  servants  negllijently  len%Mng 
■r  (gating  open);    Hole  r.  Sitting- 
no  Uy.  Co.,  6  II.  &  S.-iSS  frallway 
i>any  to  construct  bridge  by  Act  of 
iinient   to  open  without  detaining 
'Is;  contractor  negligent  and  corn- 
liable)  ;  Morscy  Docks  Trustees  v. 
n,  L.  K.  1  II.  L.  9:5;  35  L.  J.  Kx.  'JiS, 
H.  L. ;  Tarry  r.  Ashlon.  L.  U.  1  (i.  15.  D. 
Wl,  44  L.  J.  Q,  15.  Uu;  Hyams  r.  Web- 


ster, 30  L.  J.  Q.  n.  IfiO;  and  see  "  Cor 
jiorations  performing  statutory  duties," 
post.VU.  III.,M.  0. 

(s)  Pickard  v.  Smith,  10  C.  B.  (N.  S.) 
470.  [The  lessor  is  not  lialiie;  sec  Wolf 
V.  Kirkpatrick,  N.  Y.  Cl.  Ai)p.,  4  N.  E. 
Rep.  188.] 

(f)  Gilbert  r.  noach,  5  nosw.  44.'5. 
[See  Lake  Superior  Iron  Co.  v.  Erick.son, 
39  Mich. 40-2;  Kelly  r.  IIo\vclll,4I  Ohio  St. 
43S.]  — [Kills  r.  McNaughton,  70  Mich. 
237;  42  \.  W.  lU'p.  1113;  Woodman  r. 
Metropolitan  U.  Co.,  110  .Mass.  :;ri ;  21  X. 
E.  Kep.  4S2;  Ohio  South.  U.  Co.  r.Moroy, 
47  Ohio  St.  207 ;  24  N.  E.  llcp.  269.) 


224      NEGLECT   OF   DUTIES    REQUIRING  ORDINARY   CARE. 

off  work,  the  works  are  left  in  a  safe  coudition,  so  as  uot 
to  injure  strangers  (w). 

Owners  of  real  property  are  not  liable  for  the  negligence 
of  "  contractors,"  any  more  than  the  owners  of  chattels  (a), 
although  for  a  long  time  it  was  held  that  they  were. 

If  the  work  which  the  owner  orders  the  contractor  to 
perform  be  wrongful,  the  owner  will  be  responsible  to  third 
parties  for  tbe  wrongful  acts  so  done  by  the  contractor  and 
his  servants  (y). 

(«)  Smith  r.  Milne,  2  Dow, 290  (person  404.    See  alao  Reedie  v.  L.  &  N.  W.  Ey. 

omplo3-ed  to  plaster  house,  cut  hole  into  Co.,  4  Ex.  244;  Knight  v.  Fox,  5  Ex.  721; 

staircase  and  left    it;   held,  proprietor  .  Overton  v.  Freeman,  11  C.B.  867;  [in/ra]. 

liable.  (2/)  Ellis  v.  Sheffield  Gas  Co.,  2  El.  & 

(r)  Gayford  r.  Nicholls,  9  Ex.  702,  Bl.  707. 
overroling  Bnsh  v.  Steinman,  1  B.  &  P. 


(x)  The  doctrine  of  Bush  v.  Steinman  has  been  overruled  in  this  coun- 
try.— Billiard  v.  Richardson,  3  Gray,  349,  and  see  Painter  v.  Pittsburgh, 
46  Pa.  St.  213;  Peck  v.  New  York,  8  N.  Y.  222;  Kepperly  v.  Ramsden,  83 
111.  354;  King  v.  New  York,  etc.,  R.  Co.,  66  N.  Y.  181;  City  of  Molina  v. 
McKinnie,  30  111.  App.  419;  Alabama  Midland  Ry.  Co.  v.  Martin,  100 
Ala.  511;  14  So.  Rep.  401;  Maltbie  v.  Bolting,  26  N.  Y.  S.  Rep.  903;  6 
Misc.  Rep.  339;  Crenshaw  v.  Ullman,  113  Mo.  033;  20  S.  W.  Rep.  1077. 

In  llughes  u.  Railroad  Co.  (39  Ohio  St.  475),  Judge  Mcllvaine  said; 
"The  general  rule  that  employers  are  not  liable  for  the  negligence  or 
misconduct  of  independent  contractors  is  not  disputed.  It  is  contended, 
however,  that  the  rule  does  not  apply  in  cases  of  contracts  with  respect  to 
real  property.  This  contention  cannot  be  maintained.  The  rule  applies 
to  contiacts  in  respect  to  real  as  well  as  personal  property.  It  is,  how- 
ever, In  respect  to  real  estate  subject  to  these  exceptions. 

The  employer  cannot  relieve  himself  from  liability  by  contracting 
with  others  for  the  performance  of  work,  where  the  necessary  or  prob- 
able effect  of  the  performance  of  the  work,  would  injure  third  persons; 
nor  can  he  relieve  himself  of  duties  resting  upon  him  as  the  owner  of 
real  estate,  nor  to  do  or  suffer  to  be  done  upon  it  by  others,  that  which 
would  constitute  a  nuisance.  — Cooley  on  Torts  (2d  ed.),  p.  644. 

(y)  Carrlce??.  West  Va.,  etc.,R.  Co.,  36W.  Va.  389;  19  S.  E.  Rep. 
571 ;  Brannock  t7,  Elmore,  114  Mo.  65;  21  S.  W.  Rep.  451 ;  Jones  v.  Mc- 
Mlnlmy  (Ky.),  20  S.  W.  Rep.  435;  Brennan  v.  Schreiner,  20  N.  Y.  S. 
Rep.  130;  28  Abb.  N.  C.  481;  Williams  v.  Fresno,  C.  &  I.  Co.,  96  Gal. 
14;  30  Pac.  Rep.  901;  Ketcham  v.  Cohn,  22  N.  Y.  S.  Rep.  181;  2  Misc. 
Rep.  427;  Waller  v.  Lasher,  37  111.  App.  609;  Booth  v.  Rome,  etc.,  R. 
Co.,  C3  Ilun,  C24;  17  N.  Y.  S.   Rep.  336;    Hawver   v    Whalen,  49  Ohio 


TMK    employers'    LIAIJILITV    ACT.  225 

Where  a  person  is  the  servant  of  the  Government,  as  the 
Po'jtiuastcr-noncr.il  (z),  the  captain  of  a  inan-of-\v:ir  (a  ),  or 
[170]  of  tlie  public,  as  the  f-urveyor  of  highways  (A),  he 
ig  not  responsible  for  the  negligence  of  others  in  the  same 
employment,  and  this,  notwithstanding  that  no  action  can 
be  brought  against  the  principal. 


Section  VI.  —  Sub-section  II. 

T7ie  Emj)loyerH^  Liability  Act,  1880. 

The  law  having  been  laid  down,  as  we  h:ive  seen  mite, 
p.  154,  that  a  master  is  not  in  general  liable  to  his  servant 
for  damage  resulting  from  the  negligence  of  a  fellow- 
aervant  in  the  course  of  their  common  employment,  and 
workmen  and  other  servants  having  very  much  insisted 
upon  the  hardships  involved  in  such  a  state  of  the  law,  a 
bill  was,  after  several  attempts,  passed  in  favor  of  the 
employed,  and  was  entitled  the  Employers'  Liability  Act. 
There  is,  however,  n;^  provision  in  the  act  to  insure  the 
operation  of  it  as  against  a  master  who  is  willing  and 
able  to  induce  his  servant  to  agree  that  the  act  shall  not 
apply  to  his  service,  and  the  statute  is  therefore  open  to 
all  the  objections  so  often  urged  against  permissive  legis- 
lation fr).     It  has  been  held  that  a  workman  can  contract 


l-fliic  r.  Cotton,  1  I>(1.  Uaym.  C-JG;  Lord    Justice    Rrnmwcll  to  Sir    Henry 

Wbitllcld    V.    Dubpcncer,    Cowp.     75-J;  Jack-son,  In  which  the  LorrtJustlcc,  with 

(Otinlop  r.    Muiiroc,  7  Cranch,  244,  SiiU;  Lis  usiuil  force,  ninintiiln.s  that  the  act  is 

•e«  infra].  a  miHtake  in  many  ways,  and  amongst 

(a)  Nicholson  r.  Mounsey.lS  East,  384.  others,  because  the  largo  employers  of 

(6)  See  per  Hlackhurn,  J.,  in  Mersey  labor  will  contract  themselves  outof  tho 

Docks  r.  Glbbs,  L.  U.  1  H.  L.  ft"5,  at  p.  act,  while  the  smaller  cmi)loyer8,  will  bo 

in;83  U  J.  Ex.  225;    and  sec    Pablic  hit;  but  I  am  inclined  to  think  that  it 

Oflksers,  infra.  Is    the  small  employers  who  are   espe- 

(c)  In  a  small  book  on  tho  Employers'  dally  the    most    negligent,   and    who 

Uablllty    Act,  by  Mr.   Thomas  Uevan,  ought  to  bo  mado  more  careful. 

Will  be  found  a  copy  of  a  letter  from 

St.  69;  29  N.  E.  Rep.  1049;  Donova  v.  Oakland  &  B.  R.  T.  Co.,  102  Cal. 
S46;  86  Pac.  Rep.  516. 

15 


22»)      NEGLECT   OF    DUTIES   REQUIRIXa    ORDINARY   CARE. 

himself  out  of  the  statute,  and  that  such  contract  is  binding 
upon  himself  and  his  widow,  suing  under  Lord  Campbell's 
Act,  where  such  contract  is  not  induced  by  fraud  or  force, 
or  made  under  duress,  and  is  made  on  good  consideration 
((?).  Mr.  Justice  Field  said  that  workmen,  as  a  rule,  were 
perfectly  competent  to  make  reasonable  bargains  for  them- 
[1701  selves  (e)  ;  but,  if  this  be  so,  it  does  not  appear 
why  any  statute  was  needed. 

*'  At  the  time  of  the  passing  of  the  Act,"  said  Mr.  Justice 
Field  (  f),  "  the  law  stood  thus :  It  was  an  implied  term 
of  the  contract  between  employer  and  workman  that  the 
latter  should  not  recover  damages  if  he  was  injured  by  the 
nen^ligenee  of  a  person  (even  a  superior)  in  the  common 
employment.  Then  the  effect  of  section  1  was  to  do  away 
with  that  term."  "  The  effect  of  section  1,"  said  Mr. 
Justice  Cave  {g),  "is  that  the  workman  may  bring  his 
action  in  five  specified  cases  or  classes  ( A  ),  and  the  employer 
shall  not  be  able  to  say  in  answer  that  the  plaintiff  occupied 
the  position  of  workman  in  his  service,  and  must  therefore 
be  taken  to  have  impliedly  contracted  not  to  hold  the 
employer  liable.  In  other  words,  the  legal  result  of  the 
plaintiff  being  a  workman  shall  not  be  that  he  has  impliedly 
contracted  to  bear  the  risks  of  the  employment,"  «'.  e.,  as 
far  as  the  five  specified  classes  are  concerned.  With  regard 
to  other  servants  who  are  not  within  any  of  these  five 
classes,  but  are  fellow-servants  in  the  common  employ- 
ment, the  old  common-law  rules  apply.  Thus  in  Robins 
V.  Cubitt  (/),  where  a  pail  was  lowered  negligently  by 
fellow-servants  of  the  plaintiff,  who  were  not  in  positions 
eml)raced  by  any  of  the  above  five  classes,  the  employer 
wab  held  not  liable.     The  old    common-law   rules   would 

(il)  ThiB  Ticw  IB  also  taken  by  Lord  (/)  Griffiths  v.  Dudley  (Earl),  9  Q. 

Hrainwell  In  the  letter  above  referred  B.D.  357,363. 
»«•  (<7)  p.  306. 

(«)  The  employer  had  contributed  to  (h)  See  Mr.  Justice  Field's  judgment, 

a  club  an  amount  equal   to    the   whole  p.  362. 
coDlrlbutiona  of  the  men.  (i)  46  L.  T.  N.  S.  535. 


THE    K.M  PLOY  Kits'    LIABILITY    ACT.  227 

Bccm  also  to  apply  in  any  case  where  the  procccdinf^s  arc 
not  taken  untlcr  the  Act  (as  by  duo  notice,  &c.),  but 
are  taken  at  common  law.  It  was  not  intended,  however, 
that  workmen  should  have  a  double  remedy,  and  pro- 
ceed for  the  same  cause  of  action  under  the  statute 
and  at  common  law  (/).  The  statute  also  only  applies  to 
[177]  ♦'  workmen"  as  defined  by  section  8  of  the  Em- 
ployers' and  ^^^>^knu'n  Act,  1875  (/i"),  and  to  railway 
servants  (/).  Therefore,  clerks,  shopmen,  timekeepers, 
etc.,  are  excluded. 

Seamen  are  not  within  this  statute  (m),  nor  are  workmen 
in  the  service  of  the  Crown,  as  they  are  not  mentioned  (n). 
Workmen  includes  workwomen  (o)  ;  apprentices  of  a  lim- 
ited class  are  probably  included  (p). 

Section  1  of  the  text  runs  as  follows:  — 

«♦  1.  Where  after  the  commencement  of  this  Act  personal 
injury  is  caused  to  a  workman. 

**(1.)  By  reason  of  any  defect  in  the  condition  of  the 
ways,  works,  machinery,  or  plant  connected  with  or  used 
in  the  business  of  the  employer,  or 

•*  (2.)  By  reason  of  the  negligence  of  any  i)erson  in  the 
service  of  the  ern))loyer  who  has  any  superintt'iidenci;  en- 
trusted to  him  whilst  in  the  exercise  of  such  superintead- 
ence ;  or 

**  (3.)  By  reason  of  the  negligence  of  any  person  in  the 
service  of  the  employer  to  whose  orders  or  directions  the 


0)  Munday  f.  Thames  Iron   Works  passing  of  this  Act,  be  expressed  or  Im- 

Oo.,  47  L.  T.  N.  S.  351 ;  10  il  B.  U.  5'.>.  piled,  oral  or  in  wrllinK,  and  be  a  con- 

(i;)  SucU    10   of  38  *   39  Vict.   c.  !K),  tract  of  service  or  a  contract  personally 

•the  expression  workman  does  not  In-  to  execute  any  work  or  labor,"  see  infra. 
elnde  a  domestic  or  menial  servant,  but,  (/)  Sect.  8. 

sate  aa   aforesaid,  means  any  person  (to)  See  4:5  &  44  Vict.  c.  Ifi,  s.  11,  pro- 

wbo,  bclnK  a  laborer,  servant  In  hua-  serving  the  excluding  words  of  the  Em- 

bandry.   Journeyman,   artillccr,    handl-  ployers'  and  Workmen  Act,  1875. 
craftsman,  miner,  or  otherwise  engaged  (n)  Maxwell  on  Statutes,  p.  Hi. 

In  manual  labor,  whether  under  the  ago  («)  13  &  14  Vict.,  c.  21,  s.  4. 

oftwcntyouo  years  or  above  that  ago,  (p)  See  ss.  5,6,  ami  12  of  the  38  A  39 

has    entered    into   or   works   under   a  Vict.  c.  90,  Employers'   and   WorkmOQ 

OODtract  with  an  employer,  whether  the  Act,  1875. 
contract  be  made  before  or  after  the 


228      NEGLECT   OF   DUTIES   REQUIRING   ORDINARY    CARE. 

workman  at  the  time  of  the  injury  was  bound  to  conform, 
and  did  conform,  where  such  injury  resulted  from  his 
having  so  conformed ;  or 

**  (4. )  By  reason  of  the  act  or  omission  of  any  person  in 
the  service  of  the  employer  done  or  made  in  obedience  to 
the  rules  or  by-laws  of  the  employer,  or  in  obedience  to 
particular  instructions  given. by  any  person  delegated  with 
the  authority  of  the  employer  in  that  behalf  ;  or 

[178]  "  ( 5)  By  reason  of  the  negligence  of  any  person 
in  the  service  of  the  employer  who  has  the  charge  or  con- 
trol  of  any  signal,  points,  locomotive  engine,  or  train  upon 
a  railway, 

«« the  workman,  or  in  case  the  injury  results  in  death, 
the  legal  personal  representative  of  the  workman,  and  any 
persons  entitled  in  case  of  death,  shall  have  the  same  right 
of  compensation  and  remedies  against  the  employer  as  if 
the  workman  had  not  been  a  workman  of  nor  in  the  service 
of  the  employer,  nor  engaged  in  his  work." 

It  will  be  convenient  to  consider  the  several  sub-sections 
of  the  above  section  separately  in  their  order. 

By  sect.  1,  sub-sect.  1,  where  personal  injury  is  caused  to 
a  workman  {q)y  by  reason  of  any  defect  (r),  the  work- 
man (s)  shall  have  the  same  right  of  compensation  and 
remedies  against  the  employer  as  if  the  workman  had  not 
been  a  workman  of,  nor  in  the  service  of  the  employer, 
nor  engaged  in  his  work  {t). 

By  sect.  2,  sub-sect.  1,  such  defect  must  have  arisen 
through  the  negligence  of  the  employer  or  of  some  person 
in  his  service  entrusted  with  the  duty  of  looking  after 
such  defects  (u)  ;  and  by  sub-sect.  3,  if  the  workman 
knows  of  the  defect  and  fails  to  give  information  to  the 

(5)  See  eect.  8.  (t)  As  to  the  meaning  of  these  last 

(r)  In  the  condition  of   the  ways,  words  in  Griffiths  r.  Dudley,  wpra;  and 

works,  machinery,  or  plant  connected  see  infra. 

with  or  used  in  the  business  of  the  em-  («)  He  need  not  be  a  superintendent 

ployer.  over  the  person  injured. 

(s)  Or,  in  case  of   death,  his  repre- 
sentative, etc. 


THE   KMI'LOYKIIS      LIAIULITY    ACT. 


22'J 


tMn|ili)yer  or  somu  superior  person  (./;)  his  employer  is  not 
liable. 

Numerous  cases  have  been  decided  upon  the  meaning  of 
Ijjo  word  "  workman  "  in  the  4  Geo.  IV.  c.  34,  s.  3  (?/), 
[179]  (wliirh  is  similar  to  the  Employers'  and  Work- 
men Act,  1875,  8.  8),  and  in  the  Truck  Act,  1  &  2  Will. 
IV.  c.  37  (;:).  Probably  the  cases  under  the  Truck  Act  do 
not  ^ivo  much  assistance,  as  the  statute  is  not  referred  to 
in  the  present  Act,  and  it  was  a  penal  not  a  remedial 
statute. 

An  omnibus  conductor  has  been  held  not  to  ho  a  "  work- 
man" within  the  Employers'  Liability  Act,  since  he  is  not 
a  person  to  whom  the  Employers'  and  Workmen  Act,  1875, 
applies,  "being  neither  a  laborer,"  "journeyman,"  nor 
person  otherwise  engaged  in  manual  labor  (a). 

As  to  what  is  a  ♦*  defect  "  within  the  meaning  of  this 
section,  the  cases  in  the  note  may  be  consulted  (6). 

*♦  It  has  been  contended,"  said  Field,  J.,  in  McGiffln 
T.  Pahner's  Co.  (h),  "  that  there  is  a  difference  between 


(*)  UnlcBB  ho  was  awaro  they  knew 
of  the  defect. 

(y)  Ex  parte  Ormorod,  1  Dowl.  &  L. 

OS  (designer  and  artlflcer) ;  E.v  parte 

OoTdon, 'ii  K  J.  M.  C.   12    (tailor  cin- 

fd  by  tho  job) ;  E.r  parte  IJailey,  23 

M.  C.  ICl  (collier,  pergonal  service) ; 

i.-iwrenco  v.  Todd,  11  C.  P..  N.  8.  554  ;  32 

I-  J.  M.  C.  238  (Iron  sliipbnllder  and  six 

"■^rVinfii) ;  Davis  v.  Derwick,  30  L.  J.  M. 

■t  (hccount- keeper  on  a  farm  not  a 

•ant   In    husbandry);    Ilraunvell    r. 

i'ennark,  7  H    &  C.  536  (watcher  under  a 

n.  fit.  nni  8  laborer) ;  Hardy  v.  Rylc,  9  B. 

I'k  weaver  at  home  not  a  la- 

pdWa  Hughes,  23  I^  J.  M.  C. 

I  -  irnuK,  dairymaid,  and  as.^'lstiug  at 

barrcat  work,  servant  In  hiiBbandry). 

(s)  Kllcyr.Wardcn,2E.\.50;  18 L.J. 

Ex.  120  (contractor  under  superior  con- 

tr.K'ior   not  within   Act) ;    Sharmau   v. 

tar*.  13  C.  11.  KJC;   20  L,  J.  C.  P.  99 

iUoctors     employing     others     and 

iillmcs  working,  not  within);  now- 

■  r..  r.  Ix>rckln,  6  E.  *  11.  fi'*4  ;  2.%  1,.  J.  Q. 

li.3il  (butty  colliers,  within);  Slecman 


V.  IJarrctt,  2  II.  &  C.  931 ;  33  L.  J.  Ex.  153 
(butty  colliers,  not  within);  Ingram  v. 
Karnes,  7  K.  &  15.  J15;  2G  L.  J.  t^.  IJ.  82 
(laborer  making  brjcks  under  written 
contract  for  a  railway  contract,  no  con- 
tract for  personal  work,  not  within). 

(«)  Morgan  r.  London  General  Omni- 
bus Co.,  12  Q.  B.  D.  201 ;  [r.O  L.  T.  N.  8. 
6^7, affirmed  on  aiipeal,.')!  L.T.  N.  S.  213; 
Brown  i:  Hutlcrlcy  Coal  Co.,  Q.  B.  DIv., 
Law  Times,  Dec,  20,  ISSS  (miner  work- 
ing for  "  butty  man  "  within).) 

(b)  McGifllnr.  Palmor'n  Shipbuilding 
Co.,  43  L.  T.  N.  S.  346;  10  Q.  B.  D.  6 
(something  permanent  In  the  condition 
of  the  way) ;  Huxam  v.  Thoins,  L.T.Jan. 
28,  1S32,  p.  227,  Q.  B.  I). ;  Langham  v. 
Young,  L.  T.  July  30, 1881,  p.  23:1 ;  Whlta- 
keri'.  Balmforth,  L.  T.  Sept.  li»,  ISSl,  p. 
327;  Tophara  v.  Goodwin,  L.  T.  Nov.  B, 
is^l.p.  10;  Heskev.  Samnelson  A  Co.,  12 
Q.  B.  D.  30  (condition  of  machino  means 
condition  with  respect  to  purpose  to 
which  It  Is  applied) ;  [sec  also  Cripps  v. 
Judge,  51  L.  T.  N.  8.  182], 


230      NEGLECT   OF   DUTIES    REQUIRING   ORDINARY    CARE. 

'a  way'  and  'the  couditioii  of  a  way,'  and  illustrations 
have  been  given  to  bear  out  this  contention.  The  case 
has  been  put  of  a  way  perfectly  well  constructed,  but 
upon  which  on  a  frosty  December  morning  water  falls, 
so  that  it  gets  into  a  dangerous  state.  I  cannot  help 
thinking  that  that  would  be  a  defect  in  the  condition 
of  the  wajs  because  the  way  is  the  thing  which  people 
walk  upon,  and  the  thing  itself  is  actually  altered.  Taking 
the  case  of  machinery,  there  the  absence  of  oil  does  not, 
it  seems  to  me,  affect  the  permanent  condition  of  the  thing 
itself  (c).  Here  the  defect  is  not  in  the  way,  the  defect 
[180]  is  that  some  person  carelessly  put  something  on  the 
way  which  he  ought  not  to  have  put  there.  This  was  an 
obstruction.  In  a  grant  of  right  of  way  if  such  a  case 
were  brought  forward  the  declaration  would  not  have  been 
that  the  way  was  defective,  but  that  it  was  obstructed. 
Actions  are  brought  sometimes  against  railway  companies 
for  their  stations  being  in  a  defective  condition  —  out  of 
**  repair  —  but  if  an  action  were  brought  against  a  railway 
company  for  leaving  a  bucket  on  a  dark  night  in  a  dark 
passage,  surely  it  would  not  be  alleged  that  this  consti- 
tuted a  defect  in  the  way.  I  cannot  help  thinking,  there- 
fore, that  the  construction  to  be  put  on  sub-sect.  1  is  that 
the  defect  must  be  something  in  the  permanent,  or  quasi- 
permanent  condition.  Therefore  without  laying  down  any 
general  rule,  I  think  the  present  case  does  not  fall  within 
the  section,  and  on  this  point  the  judgment  will  be  re- 
versed." And  Stephen,  J.,  said,"  A  defect  in  the  machinery 
would  be  the  absence  of  some  part  of  the  machinery,  or  a 
crack,  or  anything  of  that  kind.  A  defect  in  the  condition 
of  the  way,  or  works,  or  machinery,  or  plant,  is  certainly 
wider,  but  I  do  not  think  it  very  much  wider.  It  means, 
I  should  be  inclined  to  say,  such  a  state  of  things  that  the 
power  and    quality    of    the  subject    to  which    the    word 

(c)  Surely  the  absence  of  oil  might      machine,  and   as   permanently   as    ice 
Tery  materially  aflfect  the  condition  of  a      would  affect  a  way. 


TIIK    KMPLOYERS'    LIAIJILITV    A(  T.  2.U 

•  condition  '  is  applied  ari'  for  the  tiim-  being  altered  in 
such  II  manner  as  to  interfere  with  their  use.  For  instance, 
if  the  way  is  made  iniuldy  by  water,  or  if  it  is  made 
HJippcry  by  iee,  in  either  vi'  these  cases,  I  should  say  that 
the  way  itself  is  not  defective,  but  the  eoudition  of  the 
way,  by  reason  of  the  water  which  is  incorporated  with  it, 
(»r  from  its  being  in  a  freezing  state,  is  affected.  We  are 
usked  to  go  a  step  further,  and  Mr.  Wills  is  obliired  to 
contend  that  any  obstruction  whatever,  although  it  did  not 
alter  the  condition  of  the  way  in  the  sense  which  I  have 
described,  nevertheless  would  amount  to  a  defect  in  the 
condition  of  the  way.  That  seems  to  me  to  lead  to  the 
u»e  of  language  which  would  certainly  be  very  uniuitural. 
[181]  Suppose,  for  instance,  a  drunken  man  staggering 
along  the  road,  could  that  be  called  a  defect  in  the  con- 
dition of  the  way?  and,  if  not,  would  it  make  any  differ- 
enco  if  ho  were  lying  down  dead  drunk?  If  such  an 
obstruction  is  not  a  defect  in  the  condition  of  the  wa}-, 
I  do  not  see  why  a  piece  of  tap  should  be.  I  do  not  think 
we  ought  to  put  so  wide  a  construction  on  the  words  '  con- 
dition of  the  way  *  as  to  include  obstacles  lying  upon  the 
way,  which  obstacles  do  not  in  any  degree  alter  the  powers 
of  the  way,  or  alter  its  fitness  for  the  purpose  for  which  it 
is  generally  employed,  and  cannot  be  said  to  bo  incor- 
l|)orated  with  it.  It  seems  to  me,  therefore,  that  the 
presence  of  this  })icce  of  ta})  on  the  road  cannot  be  called 
a  defect  in  the  condition  of  the  way." 

The  concluding  words  of  the  section  are  very  peculiar, 
viz.,  "that  the  workman  shall  have  the  same  rights  and 
remedies  as  if  the  workman  had  not  been  a  workman,  &c." 
What  rights  and  remedies  are  these  ?  Are  they  the  same  as 
a  trespasser,  or  a  person  invited,  or  a  volunteer?  The 
Words  can  only  mean  that  the  defense  that  he  is  a  fellow- 
servant  is  not  to  be  raised  (d),  but  he  must  be  considered 

(d)  See  GrlfQtbs   v.    Dudley,  mprti;  secprr  Cave,  J.,  |>.  365. 


232      NEGLECT  OF   DUTIES    REQUIRING    ORDINARY   CARE. 

as  a  person  employed  for  the  mutual  benefit  of  the  em- 
ployer and  himself  towards  whom  the  employer  is  bound 
to  exercise  ordinary  care. 

As  to  the  meaning  of  the  word  machinery,  see  41  Vict. 
c.   16,  s.  6,  Factory  and  Workshops  Act,  1878. 

By  sect.  1,  sub-sect.  2,  where  personal  injury  is  caused 
to  a  workman  by  reason  of  the  negligence  of  any  person  in 
the  service  of  the  employer  who  has  any  superintendence 
entrusted  to  him  (e),  the  workman  shall  have  the  same 
right,  &c. 

If  the  workman  is  aware  of  the  negligence,  and  fails  to 
[182]  give  information  to  the  employer  or  some  superior 
person  the  emi)loyer  is  not  liable.     Sect.  2,  sub-sect.  3  ( /). 

The  meaning  of  the  words  *'  person  who  has  any  super- 
intendence entrusted  to  him"  is  explained  by  sect.  8  to 
mean  "a  person  whose  sole  or  principal  duty  is  that  of 
superintendence,  and  who  is  not  ordinarily  engaged  in 
manual  labor. 

Shaffers  and  Jones  were  employed  by  the  General  Steam 
Navigation  Company  loading  a  ship  with  sacks  of  com. 
Jones  had  to  guide  the  beam  of  the  crane  by  means  of  a 
guy  rope,  and  to  give  directions  and  warnings  to  the  men 
as  to  hoisting  and  lowering  the  sacks.  He  neglected  to 
use  the  guy  rope,  and  some  sacks  fell  and  injured  Shaffers, 
who  was  in  the  hold  stowing  sacks.  It  was  held  that  Jones 
was  *'  ordinarily  engaged  in  manual  labor,"  and  was  not 
«'  a  person  who  has  superintendence  entrusted  to  him  "(^). 

(e)   Whilst   in  the    exercise   of   each  workman  may  be  guilty  of  contributory 

saperintendence.    The     effect    of    the  negligence  in  other  vays  notwithstand- 

word  "whilst"  cannot  be  that  an  em-  ing  the  section;  Stewart  v.  Kvans,  L.  E. 

ployer  should  say  that  the  siiiieriutend-  W.  N.  June  2, 1883,  p.  99;  [see  Wcblint). 

ent    was   professedly   superintending,  Ballard,  Q.  B.  Div.,  L- T.  March  27, 1896]. 

but,   in  fact,  was  doing  something  he  (g)  ShaSerS  v.  The  Gen.  Steam  NaT. 

ought  not,  as  has  been  suggested;  see  Co.,  10  Q.   B.  D.  356.    The  judgment  of 

Campbell's  Eraser's  Law  of  Master  and  the  judges  'n  the  above  case  throw  no 

Servant,  p.  229.  light  upon  the  meaning  of   the   worda 

(/)  Unless   he   was  aware  the  em-  ''superintendence"   and   "  mannalj  la- 

ployer  or  superior  person  already  knew.  bor."    See  ante,  p.  229,  as  to  '' mannal 

Not  giving  information  would   be   one  labor." 
sort  of  contributory  negligence;  but  the 


THE    EMFLOYEUS'    LIAKILITV    A(  T.  238 

The  plaintiff  wiis  employed  iis  a  bricklayer,  and  was  at  work 
on  a  builtliii;^.  Thomas,  a  foreman  of  the  defendant,  wa« 
supplying,  as  a  voliinteor,  the  plac(^  of  another  workman  in 
removing  a  scaffoUliug,  and  handed  a  phuik  to  a  laborer, 
and  called  to  him  to  take  it,  bnt  it  fell,  owing  to  the  negli- 
gence of  Thomas.  It  was  argued,  on  the  authority  of 
Shafter?  v.  Gen.  Steam  Nav.  Co.,  supra,  that  Thomas  was 
not  acting  *'  in  the  exercise  of  such  superintendence,"  but 
it  was  held  that  he  was  (h). 

Bv  sect.  1,  sub-sect.  3,  where  personal  injury  is  caused 
[183]  to  a  workman  by  reason  of  the  negligonce  of  any 
person  in  the  service  of  the  employer  to  whose  orders  (z) 
the  workman  at  the  time  of  the  injury  was  bound  to  con- 
form (A),  and  did  conform,  where  such  injury  resulted 
from  his  having  so  conformed,  he  can  recover. 

If  the  workman  is  aware  of  the  negligence,  and  fails  to 
give  information  to  the  employer  or  some  superior  person, 
the  employer  is  not  liable.     (Sect.  2,  sub-sect.  3.) 

The  defendant  company  had  made  a  rule  that  no  boy 
should  drive  a  van.  A  foreman  in  the  employment  of  the 
defendants  had  ordered  n  boy  to  drive  a  van,  and  had 
offered  him  extra  pay  for  doing  so.  The  boy  was  tiirown 
off  and  injured,  and  it  was  held  that  the  foreman  was  not 
a  person  to  whose  orders  the  boy  was,  under  the  circum- 
stances, bound  to  conform,  as  there  was  a  rule  to  the 
contnary  effect,  and  the  foreman  had  offered  the  boy 
money  (?). 


flk)  Osborn  r.  Jnckoon,  11    Q.  15.    D.  taken  tlint  cnrelesj^Iy  handling  the  plank 

The  diHtlnctlon  hetween    the  two  was  a  lircich  of  that  duty. 

'H  m-cms  v»>ry  line,  and  the  words  of  (i)  Or  directions, 

utaiute  Beem  to  be  a  mere  trap  to  (A)  Lainlnp  v.   Webb,  I^  T.    Feb.  4, 

ti  the  nnwnry.    Such  explanation  as  ISSi,  p.   .217.    It    was    suggested    In   the 

■  .  I»e  given  of  these  two  cases  would  course  of  the  debate  on  the  bill  In  tho 

■  'in  to  be  that  In  the  former  case  .Tones  House  of  Ix)rdrt  that  a  hodman  would  bo 
'  !id  a  sepnrale  and  distinct  duty,  for  boun<l  to  conform  to  the  orders  of  a 
which  he  was  paid,  and  in  which  he  bricklayer;  f see  Mlllwanl  r.  MMIand  Ry. 
failed,  viz.,  to  guide  tho  rope ;  but  In  tho  Co.,  .V2  L.  T.  X.  S.  »."),  Q.  B.  DIv.] 
latter  ca««o  Thomas  had  only  the  ono  (J)  Banker  r.  Mid.  Uy,  Co.,  47  L.  T. 
<hity  of  superintendence,  and  It  must  bo  476. 


234      NEGLECT   OF   DUTIES    REQDIRIXG   ORDINAEY   CARE. 

By  sect.  1,  sub-sect.  4,  where  personal  injury  is  caused 
to  a  workman  by  reason  of  the  act  (m)  of  any  person  in  the 
service  of  the  employer,  done  in  obedience  to  the  rules  (n) 
of  the  employer  (o),  the  workman  shall  have  the  same 
right,  etc. 

Provided  (sect.  2,  sub-sect.  2)  that  if  such  injury  arose 
from  some  defect,  &c.,  in  rules,  &c.,  which  are  unapproved 
of  the  employer  will  be  liable,  but  if  from  some  defect  in 
rules,  &c.,  which  have  been  approved  by  authority,  he  will 
not  be  liable. 

The  questions  under  this  section  would  seem  to  be  (1), 
was  the  act  of  his  fellow-servant  which  produced  the  injury 
to  the  workman  done  in  obedience  to  rules  or  bjMaws  of 
[184]  the  employer,  or  to  particular  instructions  of  the 
employer  or  his  delegates?  If  it  was  in  obedience  to  rules 
or  by-laws,  of  the  employer,  the  next  question  would  be  ( 2 ) 
were  such  rules  or  by-laws  approved  or  accepted  by  the 
authorities  mentioned  in  sect.  2,  sub-sect.  2?  If  they 
were  so  approved  or  accepted,  or  if  the  act  was  done  in 
obedience  to  particular  instructions  of  the  employer  or  his 
delegates,  the  question  would  be  (3),  were  such  rules 
or  by  laws  or  such  particular  instructions  improper  or  de- 
fective ? 

By  sect.  1,  sub-sect.  5,  where  personal  injury  is  caused 
to  a  workman  (p)  by  reason  of  the  negligence  of  any 
person  in  the  service  of  the  employer  who  has  the  charge  of 
any  train  (q)  he  can  recover. 

If  the  workman  is  aware  of  such  nesliffence  and  fails 
to  give  information  to  his  employer  or  some  superior  person 
(r),  the  employer  is  not  liable.   (Sect.  2,  sub-sect.  3.) 

A  capstan  man  who  could  move  trucks  was  held  to  be 


(ot)  Or  omission.  (/>)  By  sect.  8  workman  means  rail- 

(n)  Or  by  laws.  way  servant. 

(o)  Or  In  obedience  to  particular  In-  (q)  Charge  or  control  of  any  signal, 

Btructlons  given  by  any  person  delegated  points,  locomotive  engine,  or  train  upon 

with  tlie  authority  of  the  employer  In  a  railway. 

that  behalf.  (r)  Unless  he  is  aware  they  knew  of  It. 


TUK    EMrLOYEKS'    LIABILITY    ACT.  235 

in  charge  of  ii  train  (s),  and  "  Uiicks  "  wero  said  to  be  a 
train,  allhougli  no  loconiotivo  was  attaiched  (/).  A  man 
whoho  duty  it  was  to  adjust  the  points  and  wires  of  the 
locking  apparatus,  and  to  ih)  rei)airs  under  the  orders  of 
an  inspector,  wlio  himself  inspected  the  apparatus  to  see 
that  the  work  was  properly  done,  was  held  not  to  bo  a 
person  having'*  charge  or  control  "  of  the  points  (w).  The 
word  ••  railway  "  includes  a  temporary  railway  used  in  the 
construction  of  a  permanent  one  (x),  and  also  includes  a 
siding  or  goods  station  (y). 

The  widow  is,  as  we  have  seen,  debarred  from  suing 
where  the  husband  has  contracted  himself  out  of  the  Act  (s), 

[185]  As  has  been  noticed  in  note  (/),  anfe,  p.  182, 
the  fact  that  the  statute  requires  the  plaintiff  to  give 
notice  of  the  defects  does  not  prevent  the  employer  from 
setting  up  some  other  form  of  contributory  negligence  on 
the  part  of  the  workman  as  a  defense  to  his  claim  (a). 

Sect  2.  "  A  workman  shall  not  l)e  entitled  under  this 
Act  to  any  right  of  compensation  or  remedy  against  the 
employer  in  any  of  the  following  cases;   that  is  to  say, 

**(1)  Under  sub-sect.  1  of  sect.  1,  unless  the  defect 
therein  mentioned  arose  from,  or  had  not  been  discovered 
or  remedied  owing  to  the  negligence  of  the  employer,  or 
of  some  person  in  the  service  of  the  employer,  and  en- 
trusted by  him  with  the  duty  of  seeing  that  the  ways, 
works,  machinery,  or  plant  were  in  proper  condition  (6). 

•*  (2)  Under  sub-sect.  4  of  sect.  1,  unless  the  injury  re- 
sulted from  some  impropriety  or  defect  in  the  rules,  by- 
laws,   or   instructions  therein    mentioned;    provided  that 

(•)  Cox  c.  G.  W.  Uy.  Co.,  'J  (j.  B.  D.  |12  Q.  I!.   I).  208];  [affirmed  on  appeal, 

W.  50  L.  T.  N.  S.  7]. 

(I)  Cox  V.  G.  W.  Ry.  Co.,  tupra.    It  (.c)  Doughty  r.  Flrbank,  10  W-   «•  O. 

""■I'd  rather  seem  that  one  track  coald  358. 

••  a  "  train."  and  it  Is  even  pos.slblc  (y)  Cox  v.  G.  W.  Ry.  Co.,  tupra. 

two    might   not   bo  considered  a  (r)  Griniths  r.  Dadiey,  gupra. 

"Ualn."  („)  stnartv.  Evans,  L.  Ii,  W.  N.  Juno 

(•)  Glbbs  V.  G.  W.  Ry.  Co.,  L.  R.  W.  -»,  1883,  p.  '.t9. 
H.  lUyS,  188S,  p.  83;  18  L.  T.  N.  S.  640;  (fc)  This  sub-secllon   has  been  dis- 

cussed, iiiite,  p.  231. 


236      NEGLECT   OF   DUTIES    REQUIRING   ORDINARY   CARE. 

where  a  rule  or  by-law  has  been  approved  or  has  been  ac- 
cepted as  a  proper  rule  or  by-law  by  one  of  Her  Majesty's 
Principal  Secretaries  of  State,  or  by  the  Board  of  Trade  or 
any  other  department  of  the  government,  under  or  by  vir- 
tue of  any  Act  of  Parliament,  it  shall  not  be  deemed  for 
the  purposes  of  this  Act  to  be  an  improper  or  defective 
rule  or  by-law  (c). 

*'  (3)  In  any  case  where  the  workman  knew  of  the  de- 
fect or  negligence  which  caused  his  injury,  and  failed 
within  a  reasonable  time  to  give,  or  cause  to  be  given, 
information  thereof  to  the  employer  or  some  person 
superior  to  himself  in  the  service  of  the  employer,  unless 
he  was  aware  that  the  employer  or  such  superior  already 
knew  of  the  said  defect  or  negligence  "  {d). 

The  words  of  this  section  are  *'  some  person  superior 
to  himself  in  the  service  of  the  employer."  I  suppose  a 
[186]  bricklayer  is  superior  to  a  hodman,  but  if  a  hod- 
man reported  to  a  bricklayer  would  that  be  sufficient  to 
render  the  builder  liable ;  ought  he  not  to  report  to  a  fore- 
man, or  person  to  whom  the  builder  has  delegated  his  duties? 

Sect.  3.  "  The  amount  of  compensation  recoverable 
under  tbis  Act  shall  not  exceed  such  sum  as  may  be  found 
to  be  equivalent  to  the  estimated  earnings,  during  the 
three  years  preceding  the  injury,  of  a  person  in  the  same 
grade  eniployed  during  those  years  in  the  like  employment 
and  in  the  district  in  which  the  workman  is  employed  at  the 
time  of  the  injury." 

This  section  may  be  regarded  as  a  rough  and  ready  mode 
of  stopping  the  indiscretion  of  some  juries.  It  was  found 
in  practice  that  in  ordinary  cases  juries  found  three  years' 
wages  as  compensation,  and  this  has  been  taken  as  the 
limit  under  the  Act.  It  is  presumed  that  the  old  rules  as  to 
estimating  the  damages  still  remain,  so  that  bodily  suffering 
is  a  head  of  damage  just  as  much  as  loss  of  wages. 

(c)  This   sub-section  has  been  dls-  (,d)  See  awfe,  p.  232,  note  (/). 

cussed,  ante,  p.  232. 


THE    ESil'LOYEUs'    LIAHILITV    ACT.  237 

Sec.  4.  "  An  action  for  tho  ieeov(>ry  luidor  this  Act  of 
compensation  for  an  injury  shall  not  l)o  niaintain.ihlc  un- 
less notice  that  injury  ini.s  been  sustained  is  f;iven  within 
«ix  weok-^,  and  the  action  is  coninienccd  within  six  months 
from  tho  occurrenco  of  tho  accident  causing  the  injury,  or 
in  case  of  death,  within  twelve  months  from  the  time  of 
'  ith:  Provi(k>d  always,  that  in  case  of  death  tho  want  of 
h  notice  shall  I)o  no  bar  to  the  maintenance  of  such 
action  if  the  judije  shall  be  of  opinion  that  there  was 
reaHonable  excuse  for  such  want  of  notice." 

This  sccLiou  requires  notice  to  be  given  within  six  weeks 
from  tho  injury.  If  such  notice  is  not  given  then  at  tho 
end  of  six  weeks  from  tho  injury  no  action  can  bo  brought 
oven  if  tho  injuries  have  been  dormant  or  have  materially 
increased  ((/).  Possil)ly  such  cases  may  be  rare,  t)ut  they 
might  well  be  provided  for.  In  case  of  death  notice  must 
bo  given  within  six  weeks  from  the  injury,  unless  tho 
[187]  judge  thinks  there  is  a  reasonable  excuse  ;  so  that 
if  a  man  has  been  injured  and  has  not  given  notice  he  loses 
his  remedy,  but  if  ho  dies  in  the  seventh  week  from  the 
injury  his  representatives  can  recover  if  a  judge  thinks  fit. 
Secondly,  tho  section  requires  an  action  to  be  begun  within 
»ix  months  from  the  injury  ;  but  if    the    man    dies    then 

'Ive  months  from  the  death.  Therefore,  if  a  plaintiff 
_  \'ii  notice  within  six  weeks  and  did  not  commence  an 
action  till  after  six  months,  he  would  lose  his  right  of 
action;  but  if  he  then  died  from  his  injury  in  the  seventh 
month,  I  presume  his  rights  would  revive,  and  his  repre- 
sentatives might  commence  an  jiction  twelve  UKmths  after- 
wards. There  seems  to  be  no  suflicicnt  reason  for  such 
complicated  provisions.  A  section  providing  fov  a  >ix 
weeks'  notice  and  six  months'  writ,  unless  the  judge  should 
be  of  opinion  that  there  was  a  reasonable  excuse  for  not 
giving  the  notice  or  bringing  the  action  within  the  time, 

(d)  Uulesa  In  cu^o  of  ilouth.    Sou  infra 


238      NEGLECT   OF   DUTIES    REQUIRING   ORDINARY   CARE. 

would  probably  suffice.  What  is  a  reasonable  excuse  is 
left  to  the  discretion  of  the  judge,  and  each  case  will  there- 
fore depend  upon  its  own  especial  facts  (e), 

The  notice  must  be  in  writing,  for  this  section  must  be 
read  with  sect.  7  (/"). 

It  is  of  no  consequence  that  knowledge  is  brought  home 
to  the  defendant  or  that  he  was  present  at  the  accident  or 
gave  money,  &c.,  to  the  plaintiff  after  the  injury  was 
inflicted  (g).  The  notice  in  writing  must  be  in  accordance 
with  sect.  7.  Where  the  letter  which  was  relied  upon  as 
a  notice  spoke  of  "  injuries  received  at  your  dock,  particu- 
lars of  which  have  already  been  communicated  to  your 
superintendent,"  Lord  Coleridge  (h)  said:  "  It  has  heen 
argued  that  a  notice  to  satisfy  this  enactment  can  be  made 
by  a  reference  in  it  to  some  other  document.  In  my  opin- 
[188]  ion  it  cannot.  If  the  letter  relied  on  in  this  case  had 
referred  to  some  written  document  in  which  the  nature  aud 
particulars  of  the  injury  were  given,  it  would  not,  I  should 
have  thought,  have  been  a  compliance  with  the  words  of 
this  enactment,  which  describe  the  notice  as  one  and  single, 
containing  in  it  the  incidents  which  the  statute  has  requii-ed 
it  to  contain  as  a  condition  precedent  to  maintaining  any 
action.  This,  however,  is  only  my  own  opinion,  and  the 
point  is  one  which  it  is  not  necessary  to  determine  in 
the  present  case,  as  we  are  all  agreed  that  the  letter  of 
the  plaintiff's  solicitor  which  is  here  relied  on  does  not 
incorporate  with  it,  or  refer  to  any  written  document, 
and  is  clearly  not  a  notice  in  compliance  with  the 
requisites  of  the  Act."  Brett,  L.  J.,  said:  •*!  agree 
that  as  a  general  rule  the  notice  must  be  given  in  one 
notice,  but  I  am  not  prepared  to  say  that  it  would  be 
fatal  if  it  were  contained  in  more  than  one  notice.    Sup- 

(e)  Macey  v.  Hodaon,  L.  T.  I>ec.  24,  482;  Adams  v.  Nightingale,  L.  T.  April 

1881,  p.  140 (defendant promised conipen-  15, 1882,  p.  424. 
satlon  three  times  —  held,  no  excuse).  (g)  See  the  cases,  supra. 

(/)  Moyle  V.  Jenkins,  8  Q.  H.  D.  116;  (/t)  Keen  v.  Millwall  Dock  Co.,  jm/ta. 

Keen  v.  MUlwall  Dock  Co.,  8  Q.  li.  D. 


TiiK  i:mi'l<)Vi;i:>'   liaiulity  act.  23i) 

{)Oiu,  for  exaiiiplo,  a  person  in  hiri  letter  written  on  one 
tliiy  should  describe  fully  the  injury  he  had  sustained, 
but  should  leave  out  his  address,  and  lie  should  the 
next  day  soml  a  letter  stating  that  in  the  letter  1  wrote 
yesterday  I  omittctl  to  give  you  my  address,  and  I 
DOW  give  it.  If  both  these  letters  wore  written  in  time, 
.ii)d  both  served  on  the  emjiloyer,  I  am  not  j)ie|)ared  to 
sjiy  that  the  last  mi^ht  not  be  taken  to  incorporate  the 
tirst,  and  therefore,  though  not  an  accurate  but  an  informal 
notice,  it  might  be  considered  a  notice  within  the  meaning 
of  the  statute.  If  in  the  present  case  the  letter  of  Mr. 
Bradley  had  referred  to  a  written  report,  and  to  the  date 
and  particulars  there  given  of  the  injury,  I  should  not  at 
this  stage  have  said  that  there  had  not  been  a  notice 
within  the  Act,  but  should  have  desired  a  rule  in  order 
that  the  matter  might  be  more  fully  discussed.  The  letter, 
however,  only  refers  to  a  statement  in  words  supposed  to 
have  been  given  by  the  plaintiff  to  the  defendant's  inspec- 
tor, and  not  to  a  statement  in  writing,  and  is  therefore  not 
[189]  a  notice  within  the  Act,  which  in  order  to  be  such 
must,  I  agree,  contain  all  the  circumstances  in  writing." 
Ilolker,  L.  J.,  said:  "  I  agree  with  my  Lord,  and  on  the 
same  grounds  which  he  has  given,  that  there  was  no  suf- 
ticient  notice  in  this  case.  But  I  cannot  say  that  a  good 
notice  might  not  be  made  out  by  one  written  document 
referring  to  another." 

;  It  has  been  held  that  the  notice  need  not  particularly 
describe  the  cause  of  the  injuiy,  but  it  is  sufficient  if  it 
-^tjites  in  ordinary  language  the  cause  of  the  injury  and 
the  date  at  which  it  was  sustained  "  and  therefore  the 
words  "  for  injury  to  his  leg  "  was  held  sufficient  {h  ).  It 
is  perhaps  singular  that  the  judgments  do  not  notice  that 
ino  cause  of  injury  is  mentioned  at  all  in  ordinary  language 
or  otherwise.     'Y\\q  cause  of  action    is  probably  roughly  in- 

(A)  stone  V.  Uyde,  0  (J.  It.  I).  7'!. 


240      NEGLECT   OF   DUTIES   REQUIRING   ORDINARY   CARE. 

dicated  by  the  words  "  injury  to  his  leg."  The  cause  of 
injury  was  the  fall  of  a  beam,  etc.,  the  burstinor  of  an  en- 
gine, etc.,  but  there  is  no  mention  whatever,  of  any  cause. 
The  words  of  the  Act  should  have  been  notice  '*  of  the 
injury  and  of  the  cause  thereof." 

In  a  subsequent  case,  the  notice  was  that  the  plaintiff 
"  was  injured  in  consequence  of  your  negligence  in  leaving 
a  certain  hoist  unprotected,  whereby,"  <S;c.,  the  jury  found 
that  the  negligence  was  in  allowing  the  plaintiff  to  go 
alone  on  the  hoist,  but  there  was  no  negligence  in  leaving 
the  hoist  unprotected,  and  it  was  held  that  the  notice  was 
sufficient,  as  it  sufficiently  stated  the  "  cause  of  injury," 
though  not  the  *'  cause  of  action."  Field,  J.,  said,  "In 
determining  whether  the  notice  is  good  or  not,  the  Court 
cannot  enter  into  the  question  of  proximate  or  remote 
cause.  It  is  not  necessary  to  state  the  cause  of  action,  but 
only  that  which  will  enable  the  employer  to  have  substan- 
tial notice  of  what  has  occurred,  so  that  he  may  make 
proper  inquiries,  and  may  come  to  trial  prepared  to  meet 
the  plaintiff's  case."  Cave,  J.,  pointed  out  that  the  cause 
[190]  of  injury  was  that  the  space  between  the  cage  of 
the  hoist  and  the  wall  was  left  unprotected.  The  jury  came 
to  the  conclusion  that  there  was  no  negligence  in  leaving 
that  space  unprotected,  because  it  was  the  duty  of  the 
mistress  always  to  go  with  a  child  sent  in  the  hoist  (/). 

Sect.  5,  "  There  shall  be  deducted  from  any  compensa- 
tion awarded  to  any  workman,  or  representatives  of  a 
workman,  or  persons  claiming  by,  under,  or  through  a 
workman  in  respect  of  any  cause  of  action  arising  under 
this  Act,  any  penalty  or  part  of  a  penalty  which  may 
have  been  paid  in  pursuance  of  any  other  Act  of  Parlia- 
ment to  such  workman,  representatives,  or  persons  in 
respect  of  the  same  cause  of  action ;  and  where  an  action 
has  been  brought  under  this  Act  by  any  workman,  or  the 

<i)  Clarkson  v.  Musgrave,  9  Q.  B.  D.  386. 


THE    EMrLOYERs'    LIABILITY    ACT.  241 

representatives  of  any  workman,  or  any  persons  claiming 
by,  under,  or  throii<rh  such  workman,  for  compensation  in 
rospect  of  any  cause  of  action  arisinix  imdtM-  this  Act,  and 
• -vment  has  not  previously  been  made  of  any  penally  or 
L  of  a  penalty  under  any  other  Act  of  Parliament  in 
respect  of  the  same  cause  of  action,  such  workman,  repro- 

itatives,  or  persons  shall    not  be  entitled  thereafter  to 

five  any  penalty  or  part  of  a  penalty  under  any  other 
Act  of  Parliament  in  respect  of  the  same  cause  of  action.'* 

Sect.  (). —  •*  ( 1  • )  Every  action  for  recovery  of  comi)ensa- 
tion  under  this  Act  shall  be  brouirht  in  a  county  court,  but 
may,  upon  the  application  of  either  plaintiff  or  defendant, 
be  removed  into  a  superior  court  in  like  manner  and  upon 
the  same  conditions  as  an  action  commenced  in  a  county 
court  may  by  law  be  removed. 

••  (2.)  Upon  the  trial  of  any  such  action  in  a  county  court 
before  the  judiro  without  a  jury  one  or  more  assessors  may 
be  appointed  for  the  purpose  of  ascertaining  the  amount  of 
compensation. 

**  (3.)  For  the  purpose  of  regulating  the  conditions  and 
mode  of  appointment  and  remuneration  of  such  assessors, 
[191]  and  all  matters  of  procedure  relating  to  their  duties, 
and  also  for  the  purpose  of  consolidating  any  actions  under 
this  Act  in  a  county  court,  aiid  otherwise  preventing  multi- 
plicity of  such  actions,  rules  and  regulations  may  be  made, 
varied,  and  repealed  from  time  to  time  in  the  same  manner 
as  rules  and  regulations  for  regulating  the  practice  and  pro- 
cedure in  other  actions  in  county  courts. 

••♦County  court'  shall,  with  respect  to  Scotland,  mean 
[the  'Sheriff's  Court,*  and  shall,  with  respect  to  Ireland, 
mean  the  '  Civil  Bill  Court.' 

♦*  In  Scotland  any  action  under  this  Act  may  bo  removed 
to  the  Court  of  Session  at  the  instance  of  either  party,  in 
the  manner  provided  by,  and  subject  to  the  conditions  pro- 
scribed by,  section  9  of  the  Sheriff  Courts  (Scotland)  Act, 
1877. 

16 


242      NEGLECT   OF  DUTIES   REQUIRING   ORDINARY   CARE. 

**  In  Scotland  the  sheriff  may  conjoin  actions  arising  out 
of  the  same  occurrence  or  cause  of  action,  though  at  the  in- 
stance of  different  parties  and  in  respect  of  different 
injuries." 

The  manner  in  which  and  the  conditions  on  which  an  ac- 
tion may  be  removed  in  a  county  court  to  a  superior  court, 
are  to  be  found  in  9  and  10  Vict.  c.  95,  s.  90  ;  19  &  20 
Vict.  c.  108,  s.  38  ;  28  and  29  Vict.  c.  99,  s.  39.  Actions 
may  also  be  removed  by  certiorari  (k). 

Sect.  7.  "Notice  in  respect  of  an  injury  under  this  Act 
shall  give  the  name  and  address  of  the  person  injured,  and 
shall  state  in  ordinary  language  the  cause  of  the  injury  and 
the  date  at  which  it  was  sustained,  and  shall  be  served  on 
the  employer,  or,  if  there  is  more  than  one  employer,  upon 
one  of  such  employers. 

"  The  notice  may  be  served  by  delivering  the  same  to  or 
at  the  residence  or  place  of  business  of  the  person  on  whom 
it  is  to  be  served. 

[192]  "The  notice  may  also  be  served  by  post  by  a 
registered  letter  addressed  to  the  person  on  whom  it  is  to 
be  served  at  his  last  known  place  of  residence  or  place  of 
business  ;  and,  if  served  by  post,  shall  be  deemed  to  have 
been  served  at  the  time  when  a  letter  containing  the  sam-e 
would  be  delivered  in  the  ordinary  course  of  post ;  and,  in 
proving  the  service  of  such  notice,  it  shall  be  sufficient  to 
prove  that  the  notice  was  properly  addressed  and  registered. 

"  Where  the  employer  is  a  body  of  persons  corporate  or 
unincorporate  the  notice  shall  be  served  by  delivering  the 
same  at  or  by  sending  it  by  post  in  a  registered  letter 
addressed  to  the  office,  or,  if  there  be  more  than  one  office, 
any  one  of  the  offices  of  such  body. 

*'  A  notice  under  this  section  shall  not  be  deemed  invalid 

(,k)  See   County  Court  Practice   by  Ity  Act  would  be  removed.    Mnndayf. 

Pitt -Lewis,  p    l~\,etseq.   An  application  Thames  Ironworks  Co.,  10  Q.  B.  D.  59  — 

for  a  certiorari  was  refused  In  one  case  Denman  and  Manlsty,  JJ. ;  47  L.  T.  N.  8. 

on  the  ground  that  if  it  were  granted  351;  [see  Reg.  v.  The  Judge  of  the  Olty 

most  cases  under  the  Employers'  Liabil-  of  London  Court,  52  L.  T.  N.  S.  537]. 


STATl'TES    AITECTINCJ    KMl'LOYKll    AM)    EMI'I.OVi;.       24."J 

hv  rca-oii  <>!'  any  defect  or  iniiccuriicy  therein,  unless  the 
jiulgo  who  tries  the  action  arising  from  the  injury  men- 
tioned iu  the  notice  shall  bo  of  opinion  that  the  defendant 
in  the  action  is  prejudiced  in  his  defense  by  such  defect 
or  inaccuracy,  and  that  the  defect  or  inaccuracy  was  for  1h<' 
purpose  of  misleading." 

This  section  must  be  read  with  sect.  4,  ante,  p.  237. 

"A  notice  under  the  act  must  be  delivered  in  such  a 
manner  that  it  is  reasonable  to  expect  that  it  will  come  to 
the  defendant's  knowledge  in  the  ordinary  course  of  busi- 
ness." Tlierefore,  a  notice  left  at  the  place  of  business 
after  business  hours,  not  in  the  letter  box,  but  iu  a  box 
used  by  the  foreman,  is  not  properly  served  (I). 

(0  Adams  v.  N'lghtingale,  (iu2>rii;  L.  T.  April  15,  1882,  [i.  424. 

Statutes  atfectln?  Employer  and  Employe. —  The  statutes  of  the 
States  of  this  country  differ  from  the  Kiiglish  statutes  and  from  each 
other.    Some  of  these  we  have  given  in  this  section. 

Alabama.  —  Code  Civil,  1886,  §  2590:  — 

"  Liability  of  master  or  employer  to  servant  or  employe  for  injuries.  — 
When  a  personal  injury  is  received  by  a  servant  or  employe  in  the  ser- 
vice or  business  of  the  master  or  employer,  the  master  or  employer  is 
liable  to  answer  in  damages  to  such  servant  or  employe,  as  if  he  were 
a  stranger,  and  not  engaged  in  such  service  or  employment,  in  the  cases 
following :  — 

"  I.  When  the  Injury  is  caused  bylreason  of  any  defect  in  the  condition 
j  of  the  ways,  woriis,  machinery  or  plant  connected  with,  or  used  in  the 
j  biuincss  of  the  master  or  employer. 

I       "  2.  When  the  injury  is  caused  by  reason  of  the  negligence  of  any  per- 
I  son  in  tlie  service  or  employment  of  the  master  or  employer  who  has  any 
I  superintendence  iatrusted  to  him,  whilst  In  the  exercise  of  such  super- 
intendence. 

"8.  When  such  injury  Is  caused  by  reason  of  the  negligence  of  any 
person  in  the  service  or  employment  of  the  master  or  employer,  to 
whose  orders  or  directions  the  servant  or  employe  at  the  time  of  the 
Injury  was  bound  to  conform,  and  did  conform,  if  such  injuries  resulted 
from  his  havmg  so  conformed. 

"  4.  When  such  injury  is  caused  by  reason  of  the  act  or  omission  of  any 
person  in  the  service  or  employment  of  the  master  or  employer,  done  or 
nude  in  obedience  to  the  rules  and  reuulatlons  or  by-laws  of  the  master 
or  employer,   or  in  obedience  to  particular  lu.structions  given  by  any 


244      NEGLECT   OF   DUTIES   REQUIRING   ORDINARY   CARE. 

[193]  The  section  states  that  notice  may  be  served  by 
delivering  the  same  to  or  at  the  residence,  &c.,  and  in  another 

person  delegated  with  the  authority  of  the  master  or  employer  in  that 
behalf. 

"  5.  When  such  injury  is  caused  by  reason  of  the  negligence  of  any  per- 
son in  the  service  or  employment  of  the  master  or  employer,  who  has 
the  charge  or  control  of  any  signal,  points,  locomotive,  engine,  switch, 
car,  or  train  upon  a  railway,  or  of  any  part  of  the  track  of  a  railway. 

"But  the  master  or  employer  is  not  liable  under  this  section,  if  the 
servant  or  employe  knew  of  the  defect  or  negligence  causing  the  injury, 
and  failed  in  a  reasonable  time  to  give  information  thereof  to  the  master 
or  employer,  or  to  some  person  superior  to  himself  engaged  in  the  ser- 
vice or  employment  of  the  master  or  employer,  unless  he  was  aware  that 
the  master  or  employer  or  such  superior  already  knew  of  such  defect  or 
negligence;  nor  is  the  master  or  employer  liable  under  sub-division  one, 
unless  the  defect  therein  mentioned  arose  from,  or  had  not  been  dis- 
covered or  remedied  owing  to  the  negligence  of  the  master  or  employer, 
or  of  some  person  in  the  service  of  the  master  or  employer,  and  intrusted 
by  him  with  the  duty  of  seeing  that  the  ways,  works,  machinery  or  plant 
were  in  proper  condition. 

♦'  Under  section  5291  the  personal  representative  may  recover  in  case  of 
death;  the  amount  recovered  shall  not  be  subject  to  debts,  but  be  dis- 
tributed according  to  the  statute  of  distributions." 

California.—  Civil  Code,  1885,  §  1971  :— 

''  An  employer  must  in  all  cases  indemnify  his  employe  for  losses 
caused  by  the  former's  want  of  ordinary  care." 

*'  Sec.  1970.  An  employer  is  not  bound  to  indemnify  his  employe  for 
losses  suffered  by  the  latter  in  consequence  of  the  ordinary  risks  of  the 
business  in  which  he  is  employed,  nor  in  consequence  of  the  negligence 
of  another  person  employed  by  the  same  employer  in  the  same  general 
business,  unless  he  has  neglected  to  use  ordinary  care  in  the  selection  of 
the  culpable  employe." 

The  sections  of  the  Dakota  code,  1887  (3753  and  3754),  which  are  pre- 
cisely similar  to  those  of  the  California  code,  received  a  construction  by 
the  United  States  Supreme  Court  in  Northern  Pacific  R.  Co.  ».  Herbert, 
33  Alb.  Law  Jour.  288,  where  it  was  said,  giving  the  sections  as  in  a 
former  revision:  "  We  do  not  consider  that  the  first  of  these  sections 
(1130  corresponding  to  section  1970  of  the  California  code)  changes  the 
law  previously  existing  as  to  the  exemption  of  an  employer  from  personal 
responsibility  for  injuries  committed  by  a  servant  to  a  fellow-servant  in 
the  same  general  business,  or  identifies  the  business  of  providing  safe 
machinery  and  keeping  it  in  repair  with  the  business  of  handling  and 
moving  it.  The  two  kinds  of  business  are  as  distinct  as  the  making  and 
repairing  of  a  carriage  is  from  the  running  of  it.  They  are,  as  stated  in 
the  case  cited  by  the  Supreme  Court  of  Massachusetts,  from  which  we 


8TATL  TKS    AFFECTINO    EMl'I.OYKi:    ANO    KSIl'LOYK.       245 

[194]  piirngnipli  "  the  notice  may  ho  simvimI  hy  po^t  by  a 
registered  letter.      At  first  sight  this  looks  u.-  if  the  Hervico 

h»Te  cited  above,  separate  and  independent  departments  of  Hervico, 
thoa^b  the  same  person  may  by  tarns  render  service  In  each.  The  person 
engaged  In  the  former  rt  presents  the  employer,  and  In  tliat  1)ii»1iic-hm  Is 
not  a  fellow-servant  with  one  enga^jed  In  the  latter.  The  words  'same 
general  business  '  in  the  section  have  reference  to  the  peneral  business 
of  the  department  of  service  in  which  the  employe  is  enga-ied,  and  do 
not  embrace  business  of  every  kind  which  may  have  some  relation  to  the 
affairs  of  the  employer,  or  even  be  necessary  for  the  successful  man- 
agement. If  any  other  construction  were  adopted,  there  would,  under 
the  section,  be  no  such  thinp:  as  separate  departments  of  service  in  the 
basiness  of  railroad  companies;  for  whatever  would  tend  to  aid  in  the 
transportation  of  persons  and  property  would  come  under  the  desipjna- 
tioQ  of  its  general  business.  The  same  section  is  in  the  Civil  Code  of 
California,  and  our  construction  of  it  accords  with  th:it  of  tlie  Supreme 
Coort  of  the  State.  Section  1131  (section  1971,  California  code)  of 
the  Dakota  code  expresses  the  general  law,  as  we  have  stated  it  to 
be,  that  an  employer  is  responsible  for  Injuries  to  his  employes 
canned  by  his  own  want  of  ordinary  care.  Ills  selection  of  defective 
machinery,  which  Is  to  be  moved  by  steam  power,  is  of  itself  evidence 
of  a  want  of  ordinary  care;  and  allowing  it  to  remain  out  of  repair 
when  its  condition  is  brought  to  his  notice,  or  by  proper  inspection 
might  be  known,  la  culpable  negligence.  Here  the  cars  had  been 
defective  for  years.  The  brakes  were  all  worn  out,  and  their  condition 
had  been  called  to  the  attention  of  tlie  yardmaster,  who  had  control  of 
them  while  In  the  yard,  and  might  have  been  ascertained,  upon  proper  In- 
spection, by  the  officer  or  agent  of  the  company  charged  with  tlie  duty  of 
keeping  them  In  repair,  yet  nothing  was  done  to  repair  either  brakes  or 
cars.  Under  the  circumstances  it  caniiot  be  said  that  the  company  exer- 
cised, through  Its  officer  or  agent  charged  with  that  duly,  ordinary  care 
to  keep  the  cars  and  brakes  in  good  condition,  and  therefore  under  the 
prorlslons  of  this  section  It  is  bound  to  indemnify  the  plaintiff." 

Ceori/ta.— Code  1SS2,  §  30:^(5,  p.  7G2:— 

•'  If  the  person  injured  is  himself  an  employe  of  the  company,  and  the 
damage  was  caused  by  another  employe  and  without  fault  or  negligence 
on  the  part  of  the  person  injured,  his  employment  by  the  company  shall 
be  no  bar  to  the  recovery." 

Iowa —  §  2002,  Rev.  of  1888  :— 

"  Every  corporation  operating  a  railway  shall  be  liable  for  all  damages 
SQStalned  by  any  person,  Including  employes  of  sucli  corporation,  in  con-«e- 
qoence  of  the  neglect  of  agents,  or  by  any  mismanagement  of  the  engineers 
or  other  employes  of  the  corporation,  and  in  consequence  of  the  willful 
Trrongs,  whither  of  commission  or  omission  of  sucli  agents,  engineers  or 
other  employes,  when  such  wrongs  are  in  any  manner  connected  with  the 


246      NEGLECT   OF  DUTIES   REQUIRING   ORDINARY   CARE. 

by  post  [1^5]  must  be  by  registered  letter;  but  the 
probable    meaning   is    that    notice    may  be    served  in  the 

use  and  operation  of  any  railway,  on  or  about  which  they  shall  be 
employed,  and  no  contract  which  restricts  such  liability  shall  be  legal  or 
binding." 

Under  this  section  are,  among  others;  the  following  decisions:— 

Plaintiff  is  not  released  from  his  obligation  to  make  out  in  the  first 
instance  freedom  from  contributory  negligence  on  his  part  to  entitle  him 
to  recover.—  Murphy  v.  C.  R.  I.  &  P.  R.  Co.,  45  la.  66. 

This  section  extends  to  such  employes  as  are  engaged  in  the  business 
of  operating  the  railroad  and  not  to  those  whose  employment  is  not  con- 
nected therewith  (Schroeder  v.  C.  R.  I.  &  P.  R.  Co.,  41  la.  344),  and  is 
therefore  not  unconstitutional  as  not  being  of  uniform  operatirn,  or  as 
granting  exclusive  privileges. —  Deppe  v.  Same,  36  la.  52;  McAunich  v. 
M.  &M.  R.  Co.,  20  la.  338. 

A  workman  in  the  shops  of  the  company  is  not  so  engaged  as  to  come 
within  the  provisions  of  the  company. —  Potter  v.  C.  R.  I.  &  P.  R.  Co.,  46 
la.  399. 

But  a  person  engaged  in  working  on  a  bridge  of  the  company,  and 
required  in  the  course  of  his  employment  to  ride  upon  its  trains,  is  with- 
in tlie  section  (Schraeder  v.  Same,  47  la.  375,  383) ;  and  so  is  a  section 
hand  QFransden  v.  Same,  36  la.  372),  or  a  hand  engaged  in  shoveling 
gravel  from  a  gravel  train  (McKnight  v.  I.  &  M.  R.  Const.,  43  la. 
406).  Or  a  hand  engaged  in  connection  with  the  operation  of  a  dirt 
train.—  Deppe  v.  C.  R.  I.  &  P.  R.  Co.,  36  la.  52. 

Whether  an  employe  is  so  engaged  or  not  is  a  question  for  the  jury.— 
Schraeder  v.  C.  R.  I.  &  P.  R.  Co.,  41  la.  344. 

The  company  held  liable  to  an  employe  for  damages  resulting  from 
the  negligence  of  a  co-employe  whose  duty  it  was  to  keep  a  bridge  in 
order  in  the  performance  of  such  duty. —  Locke  v.  S.  C  &  P.  R.  Co.,  4fi 
la.  109. 

Where  the  injury  results  in  death  the  company  is  liable  to  the  personal 
representatives  of  deceased  under  section  2526. —  Philo.  v.  Ill,  Cent.  R. 
Co.,  33  la.  47. 

The  fact  that  a  lessee  may  be  held  liable  under  this  section  does  not 
prevent  recovery  against  the  owner  of  the  road.  The  actions  are 
cumulative.— Bower  v.  B.  &  S.  W.  R.  Co.,  42  la.  546. 

Under  the  last  clause  of  the  section,  a  contract  exempting  a  railroad 
company  from  liability  for  injury  to  a  passenger  is  invalid. —  Rose  v.  D. 
V.  R.  Co.,  39  la.  246. 

PlaintifE'8  petition  stated  that  he  was  a  detective  employed  by  the 
agent  of  a  railroad  to  proceed  to  a  certain  point  on  the  track  and  endeavor 
to  detect  parties  who  had  been  guilty  of  placing  obstructions  on  its 
track,  and  was  directed  to  proceed  along  the  track  of  the  road  to  that 
point  and  commence  his  search ;  that  on  the  way  he  became  prostrated 


8TATUTKS    AFFECTIN(i    KMl'LOYKU    AND    KMI'LOYE.       217 

oi.iinury  \vay,  Iml  if  .served   hy  reL;i-t nrd   Kller,  proof  of 
service  i.s  simplitied. 


by  the  heat  and  was  Injured  by  a  passing  train  tlirou;;!!  neyllKence  of  the 
engineer.  IleKI,  that  under  the  avernu'iits  of  the  petition,  the  detective 
and  the  engineer  were  co-employes,  and  that  the  phiinliff  was  en;;aged 
in  the  operation  of  the  railroad  in  such  sense  as  to  be  entitled  to  the 
benefit  of  these  provisions.—  Pyne  t?.  C.  B.  &  Q.  It.  Co.,  54  la.  223. 
A'a»ua«.— Taylor's  Statutes,  1889,  §  1251:— 

•«  Every  railroiid  company  organized  or  doing  business  in  this  State 
shall  be  liable  for  all  diimages  done  to  any  employe  of  such  company  in 
consequence  of  any  negligence  of  its  agents,  or  by  any  misraanagement 
of  Its  engineers  or  other  employes  to  any  person  sustaining  such 
damage."  —  Railway  Co.  v.  Ingram,  20  Kun.  (Jl);  Railroad  Co.  v.  Lea,  20 
Kan.  359;  Railroad  Co.  r.  Jones,  20  Kan.  527;  Railroad  Co.  v.  Edwards, 
20  Kan.  531 ;  liaiiroad  Co.  v.  Shirley,  20  Kan.  (JUO. 
MiMfiasippi.—  licv.  Code  18i)2,  §  3557:  — 

"Every  railroad  company  shall  be  liable  for  all  damages  which  may  be 
SQBtalued  by  any  person  in  consequence  of  the  neglect  or  mismanage- 
ment of  any  of  its  agents,  engineers  or  clerks,  or  for  the  mismanage- 
ment of  its  engines;  but  for  injury  to  any  passenger  upon  any  freight 
train  not  being  intended  for  both  passengers  and  freight,  the  company 
shall  not  be  liable  except  for  the  gross  negligence  or  carelessness  of  its 
uervants." 

ifwoun.- Rev.  Stat.  1889,  §  4425:— 

"Damages  for  injuries  resulting  in  death  in  certain  cases,  when  and 
j  by  whom  recoverable." 

'      '*  Whensoever  any  person  shall  die  from  any  injury  resulting  from  or 

loccaaioned  by  the  negligence,  unslcillfulness  or  criminal  intent  of  any 

ofUcer,  agent,  servant  or  employe  whilst  running,  conducting  or  manag- 

ilug  any  locomotive,  car  or  train  of  cars;  or  of  any  master,  pilot,  agent  or 

i  employe  whilst  running,  conducting  or  managing  any  steamboat,  engineer, 

or  any  of  the  machinery  thereof,  or  of  any  driver  of  any  stage  coach,  or 

r  public  conveyance,  whilst  in  charge  of  the  same  as  a  driver;  and 

II  any  passenger  shall  die  from  any  injury  resulting  from  or  occa- 

isioned  by  any  defect  or  InsutHciency  in  any  railroad  or  any  part  thereof, 

or  In    any  locomotive  or  car,  or  In  any  steamboat    or   the   machinery 

i  thereof,  or  in  any  stage  coach  or  other  public  conveyance,  the  corpora- 

jtion,  Individual  or  Individuals  in  whose  employ  any  such  ofllcer,  agent, 

{servant,  employe,  master,  pilot,  engineer  or  driver  shall  be  at  the  time 

I  such  Injury  is  committed,  or  who  owns  any  such  railroad,  locomotive, 

Icar,  stage  coach  or  other  public  conveyance  at  the  time  any  injury  is 

ived,  resulting  from  or  occasioned  by  any  defect  or  insutllclency, 

villfuiness.  negligence  or  criminal  intent  above  declared,  shall  forfeit 

aud  pay  for  every  person  or  passenger  so  dying,  the  sura  of  live  thousand 

dollars,  which  may  be  sued  for  and  recovered:  First,  by  the  husband  or 


248      NEGLECT   OF  DUTIES   REQUIRING   ORDINARY   CARE, 

[196]  The  concluding  paragraph  of  the  above  section 
says  that  the  notice  shall  not  be  deemed  invalid  by  reason 

•wife  of  the  deceased;  or,  second,  if  there  be  no  husband  or  wife,  or  he 
or  she  fails  to  sue  within  six  months  after  such  death,  then  by  the  minor 
child  or  children  of  the  deceased,  whether  such  minor  child  or  children  of 
the  deceased  be  the  natural  born  or  adopted  child  or  children  of  the 
deceased:  Provided,  that  if  adopted,  such  minor  child  or  children  shall 
have  been  duly  adopted  according  to  the  laws  of  adoption  of  the  State 
where  the  person  executing  the  deed  of  adoption  resided  at  the  time  of 
such  adoption;  or,  third,  if  such  deceased  be  a  minor  and  unmarried, 
whether  such  deceased  unmarried  minor  be  a  natural  born  or  adopted 
child,  if  such  deceased  unmarried  minor  shall  have  been  duly  adopted 
according  to  the  laws  of  adoption  of  the  State  where  the  person  execut- 
ing the  deed  of  adoption  resided  at  the  time  of  such  adoptioL,  then  by 
the  father  and  mother,  who  may  join  in  the  suit,  and  each  shall  have  an 
equal  interest  in  the  judgment;  or  if  either  of  them  be  dead,  then  by  the 
survivor.  In  suits  instituted  under  this  section,  it  shall  be  competent 
for  the  defendant,  for  his  defense,  to  show  that  the  defect  or  insufficiency 
named  in  this  section  was  not  of  a  negligent  defect  or  insufficiency 
and  that  the  injury  received  was  not  the  result  of  unskillfulness,  negli- 
gence or  criminal  intent." 

In  Proctor  v.  Hannibal,  etc.,  R.  Co.,  64  Mo.  112,  it  was  held  that  the 
phrase  "  any  person  "  did  not  include  fellow-servant,  and  that  his  remedy 
was  the  same  as  before  the  passage  of  the  statute  overruling  Schultz  t>. 
Pacific  R.  Co.,  36  Mo.  13,  and  Connor  v.  Chicago,  etc.,  R.  Co.,  59  Mo.  285. 

Montana.— n^v.  Stat.  1895,  Civil  Code,  §  905:  — 

"That  in  every  case  the  liability  of  the  corporation  to  a  servant  or 
employe  acting  under  the  orders  of  his  superior  shall  be  the  same  incase 
of  injury  sustained  by  default  or  wrongful  act  of  his  superior,  or  to  an 
employe  not  appointed  or  controlled  by  him  as  if  such  servant  or 
employe  were  a  passenger." 

Pennsylvania. —  Brightley's  PurdonDig.,  11th  ed.,  1885,  p.  1268,  §6:— 

"  When  any  person  shall  sustain  personal  injury,  or  loss  of  life,  while 
lawfully  engaged  or  employed  on  or  about  the  roads,  works,  depots  and 
premises  of  a  railroad  company,  or  in  or  about  any  train  or  car  therein, 
or  thereon,  of  which  company  such  person  is  not  an  employe,  the  right 
of  action  and  recovery  in  all  such  cases  against  the  company  shall  be 
such  only  as  would  exist  if  such  person  were  an  employe;  provided, 
that  this  section  shall  not  apply  to  passengers." 

This  act  has  received  a  construction  in  the  following  cases :  — 

In  Kirby  v.  Pennsylvania  R.  Co.,  26  Smith,  506  (1874),  the  L.  B.  R. 
Co.,  terminated  above  grade  sufBciently  near  a  siding  of  the  P.  R.  K. 
Co.  to  enable  cars  on  the  latter  to  receive  coal  by  means  of  chutes  from 
the  former.  The  plaintiff,  although  not  a  servant  of  either  company, 
but  employed  by  others  to  assist  in  running  the  coal  through  the  chutes, 


STATUTES   AFFECTING    EMl'LOYKU   AM)    EMl'LOYE.       249 

of  **  anv     [l-'7]     tlefect  or    inaccuracy"   therein,   unless 
the  judj^o  wlu)  tries  the  case  is  of  opinion  that  the  defenil- 

whtle  standing  on  the  siding,  was  injured  by  tbo  servants  of  the  P.  B. 

B.  Co.     He  was  non-suited  utuli-r  tlie  terms  of  tlie  act;  and  liis  conten- 

•.'nn  In  the  Su{)renio  Court  belnj;  mainly  tliut  the  act  was  uucoustitutional, 

f  Justice  Agiu'W  held  that  in  order  to  be  'lawfully  engaged  or  em- 

. d,'  he  must  be  there  by  his  own  consent,  and  that  he  thus  iinowingly 

iiies  a  relation  regulated  by  law.     The  relation  being  one  of  danger, 

lorizes   the   State,  by  virtue  of  being  the  conservator  of  the  lives, 

secarity  and  property  of  her  citizens,  to  enact  the  law  as  a  police  regula- 
tion. *'  The  liability  of  the  company  for  the  acts  or  omissions  of  others, 
thoagh  they  be  servants,  is  only  an  offspring  of  the  law.  The  negli- 
gence which  injures  is  not  theirs  in  fact,  but  is  so  only  by  imputation  of 
l!»w.  The  law  which  thus  Imputes  it  to  the  company  for  reasons  of 
•V,  can  remove  the  imputation  from  the  master  and  let  it  remain  with 
-..-r^'ant,  whose  negligence  causes  the  injury." 

The  ^ecoIld  case  under  the  act  was  decided  in  187G  (Mulherrin  v.  D. 
D.  L.  i  W.  K.  Co.,  31  Smith,  3GG).     A  brakeman  of  the  B.  company 
wu  Injured  by  an  engine  under  the  control  of  the  D.  company,  which 
bad,  by  agreement,  a  right  of  trackage  over  the  road  of  the  former.     In 
an  action  against  the  D.  Company,  Mr.  Justice  Paxson,  delivering  the 
'  lion  of  the  court,  held  that  the  fact  of  the  defendants'  having  track 
;s  onl>j,   was  immaterial,  the  question  not  being  one  of  extent  of 
.   but  that  the  plaiutiff  was  employed  on  or  aljout  the  road  of  the 
.dant,  and  came  precisely  within  the  terms  of  the  act. 
ihe  next  case  was  Iticard  v.  N.  Pa.  K.  Co.,  8  Norris,  VJ3.     The  plaln- 
:  went  to  a  station  of  the  defendant's  road  to  receive  and  take  away 
goods  which  had  been  consigned  to  him.     The  agent  of  the  com- 
dlrected  him  to  the  goods  in  a  car  standing  on  a  siding,  and  while 
I'laintiff  was  occupied  in  transferring  them  from   the   car  to  his 
•n,    he    was    injured  by  a  train  in   the   hands  of  the  defendant's 
.nts,  being  shunted   on  the  siding.     He  was  non-suited  under  the 
.  and  Mr.  Justice  Gordon,  in  sustaining  the  judgment  of  the  court 
ow,  said:  "Whatever  else  may  be   said  of  the  act,  the  charge  of 
cannot    be    brought  against    it,  neither  can  it  be   said   that 
-itive  intent  is  not  expressed  with  sulllcient  force.       *       *      * 
act  includes  « any  person,'  old  or  young,  male  or  female;  yet  care 
:U  the  same  time,  taken,  by  the  use  of  the  words  'lawfully  engaged' 
to  exclude  any  possible  presumption,  which  otherwise  might  arise  in 
favor  of  a  trespasser.     Then,  again,  the  comprelienslve  words  '  engaged 
or  employed '  are  used  in  order  to  embrace  every  imaginable  manner  by 
which  any  one  may  or  might  be  brought  in,  upon  or  about  the  roadway, 
cart,  or  works  of  a  railroad  company.     Nor  is  the  proviso  itself  without 
significance  as  to  the  intent  of  the  body  of  tlie  act,  for  the  sweeping  char- 
acter of  the  preceding  provisions  is  recognized  in  that  a  specific  exemp- 


250      NEGLECT   OF  DUTIES   REQUIRING   ORDINARY   CARE. 

ant  is  prejudiced,  and  [198]  that  the  defect  or  inaccu- 
racy was  for  the  purpose  of  misleading.  The  omission  of 
the  date  altogether  was  held  to  be  a  **  defect  of  inaccuracy  " 
witliiii  the  section  (w). 

(ot)  Carter  v.  Drysdale,  12  Q.  B.  D.  91. 

tion  in  favor  of  passengers  was  regarded  as  necessary."  From  this 
decision,  Justices  Mercur,  Woodward  and  Trunkey  dissented. 

Cummins  v.  P.  C.  &  St.  L.  K.  W.  Co.  was  decided  in  1879.  The  facts 
were  as  follows :  The  servant  of  a  coal  dealer  was  occupied  Iti  unloading 
cars  on  a  siding  constructed  by  the  dealer  upon  his  own  property.  Some 
cars  were  accidentally  "  shot "  from  the  main  track  upon  the  siding  through 
the  careless  misplacing  of  a  switch  by  the  railroad  company's  employes, 
and  the  coal  dealer's  servant  was  injured.  The  Supreme  Court  decided 
(U2  Pa.  St.,  p.  82)  that  he  was  employed  "  about  "  the  company's  road, 
and  fell  within  the  terms  of  the  act. 

In  1880  the  same  court  held  that  the  act  embraced  a  route  agent  of 
the  United  States  Post-offlce  Department.  Under  the  laws,  regulations 
of  the  department  and  contract  with  the  company,  one  end  of  the  bag- 
gage car  was  lifted  up  for  the  use  of  the  mail  service.  The  agent  was 
killed  by  the  negligence  of  the  carrier.  The  lower  court  held  that  he  was 
a  passenger.  But  the  Supreme  Court  thought  otherwise  and  interpreted 
the  words  of  the  act  in  a  clear  and  thoughtful  opinion  that  shows  how 
careful  was  the  judicial  consideration. —  Pa.  R.  Co.  v.  Price,  96  Pa.  St.  R. 
25G. 

In  Richter  v.  Pa.  Co.,  104  Pa.  St.  511  (1883),  the  decedent  was  an  em- 
ploye in  a  rolling  mill,  and  it  was  his  duty  to  haul  ashes  from  the  mill 
across  the  company's  track  to  a  cinder  pile.  In  attempting  to  do  so,  he 
found  bis  way  blocked  by  some  standing  cars,  and  while  uncoupling 
them  to  make  his  passage,  was  killed  by  the  negligence  of  the  company's 
servants  in  driving  an  engine  upon  the  cars  without  warning.  The  lower 
court  held  that  the  act  applied,  but  the  Supreme  Court  decided  that  there 
was  no  "  engagement  or  employment "  about  the  company's  tracks  —  only 
a  legitimate  attempt  to  exercise  the  right  to  cross  them. 

[The  above  cases  in  relation  to  the  Pennsylvania  Statute  were  taken 
from  the  Chicago  Legal  Adviser,  March  16,  1886,  credited  to  the  Bailway 
News."] 

Khode  7.s/and.— Pub.  Stat.  1882,  p.  553,  §  15:  — 

"If  the  life  of  any  person,  being  a  passenger  in  any  stage  coach  or  other 
conveyance,  when  used  by  common  carriers,  or  the  life  of  any  person, 
whether  a  passenger  or  not  in  the  care  of  proprietors  of,  or  common  car- 
rierH  by  means  of  railroads  or  steamboats,  or  the  life  of  any  person  cross- 
ing upon  a  public  highway  with  reasonable  care,  shall  be  lost  by  reason 
of  the  negligence  or  carelessness  of  such  common  carrier's  proprietor  or 


l)LTIi:S    OF    SEKVANTS.  251 

[190]  Sect.  8.  **  For  the  purposes  of  this  act,  unless 
the  context  otherwise  requires:  — 

•*  The    expression    '  person    who    has    superintendence 
i  entrusted  to  him,'   means  a  person  whose  sole  or  principal 
i  duty  is  that  of  su[)erint('nclcnce,  and  who  is  not  ordinarily 
engaged  in  manual  labor. 

"  The  expression  '  emj)loyer,'  includes  a  body  of  persons 
corporate  or  unincorporate. 

[200]  "The  expression  '  workman,'  means  a  railway 
servant  and  any  person  to  whom  the  Employers'  and  Work- 
men Act,  1875,  applies  "  (n). 


Skction  VII. 

Duties  of  Servants. 

The  question  how  far  servants,  as  such,  are  liable  to  third 

■  "rties  is  somewhat  obscure.     Practically  it  does  not  often 

M',  because  if    the    servant  is    negligent  the  master  is 

sponsible,  and  the  injured  party  will  obtain  a  more  satis- 

tory  remedy  against  the  master  than  against  the  servant. 

(n)  This  Bcctlon  has  been  dlscasBcd,  infra. 

proprietors,  or  by  the  unfltness,  or  negligence,  or  carelessness  of  their 
servants  or  agents,  in  this  State,  such  common  carriers,  proprietor  or 
proprietors  shall  be  liable  to  damages  for  the  injury  caused  by  the  loss 
of  life  of  such  person,  to  be  recovered  by  action  of  the  case,  for  the 
benefit  of  the  husband  or  widow,  and  next  of  kin  of  the  decx-ased  person, 
one-half  thereof  to  go  to  the  husband  or  widow,  and  one-half  thereof  to 
the  children  of  the  deceased." 

Wiaconsin.—  ll&v.  Stat.  1889,  §  ISlGa:— 

"Every  railroad  corporation  doing  business  in  this  State  shall  be 
liable  for  damages  sustained  by  any  employe  thereof  within  this  State, 
without  contributory  negligence  on  his  part,  when  such  damage  le  caused 
by  the  negligence  of  any  train  dispatcher,  telegraph  operator,  superin- 
tendent, yard-master,  conductor  or  engineer,  of  any  other  employe  who 
has  charge  or  control  of  any  stationary  signal  target  point,  block  or 
ewltch." 


252      NEGLECT   OF  DUTIES   REQUIRINa  ORDINARY   CARE. 

It  is  said  that  the  servant  is  not  liable  for  acts  of  nonfeas- 
ance or  omission,  but  only  for  acts  of  misfeasance  (o). 
Probably  the  difficulty  will  disappear  if  the  nature  of  the 
duty  incumbent  upon  the  servant  be  considered.  If  tho 
master  has  agreed  with  the  third  party  to  perform  a  certain 
duty,  and  the  servant  omits  to  perform  that  duty,  the  third 
party  complains  of  the  breach  of  contract  by  the  master  to 
which  the  servant  is  no  party,  and  there  is  no  duty  upoo 
the  servant  to  perform  the  contract ;  but  if  there  be  a  duty 
upon  a  master  to  see  that  his  carriage  is  driven  properly  (p), 
and  a  duty  on  a  servant  to  drive  it  properly  so  as  not  to 
injure  a  third  party,  such  third  party  may  complain  of  the 
breach  of  either  duty. 

It  is  said  that  one  servant  cannot  maintain  an  action 
against  another  in  a  common  employment  (q).    I-f  the  neg- 

(o)  MacdonneU  on  Master  and  Serv-  (g)  Abbro    v.   Jaquith,   4   Gray,   99; 

ant,  p.  254.  Southcote  v.  Stanley,  1  H.  &  N.  250,  per 

(/))  Hutchinson  v.  New  York,  New-  Pollock,  C.  B. 
castle  &  Berwick  Ry.  Co.,  5  Exch.  350. 

(o)  Harriman  v.  Stone,  67  Mo.  93,  where  a  servant  negligently  con- 
structed a  trap-door.  See  Baird  v.  Shipman,  132  111.  16;  27  L.  R.  A. 
128;  Mayer  v.  Thompson-Hutchison  Bldg.  Co.  (Ala.),  28  L.  R.  A.; 
Burns  v.  Pethcal,  75  Hun,  437;  27  N.  Y.  S.  Rep.  499. 

In  Daves  v.  Southern  Pac.  Co.  (98  Cal.  19;  32  Pac.  Rep.  708),  where 
a  section  foreman  who  had  unlocked  a  switch,  negligently  failed  to  close 
it,  he  is  liable  for  the  death  of  a  section  hand  caused  by  a  train  entering 
on  the  side  track. 

A  servant  is  not  liable  .for  his  master's  wrongful  conversion  of  a 
chattel  that  had  been  lawfully  taken  by  the  servant  with  the  owner's 
consent.  — Silver  v.  Martin,  59  N.  II.  580. 

But  the  master  of  a  vessel  is  liable  to  third  persons  for  his  own  negli- 
gence. —  Denison  v.  Seymour,  9  Wend.  9. 

Though  not  when  the  vessel  is  under  the  charge  of  a  licensed  pilot 
and  the  Injury  occurs  when  the  master  is  ashore.  —  Snell  v.  Rich,  1 
Johns.  305. 

A  servant  is  liable  as  well  as  the  master  for  negligently  driving  over  a 
third  person.— Phelps  V.  Wait,  30  N.  Y.  78;  Hewett  v.  Swift,  3  Allen,  420. 

An  engineer  to  parties  injured  by  Are  caused  by  his  negligence.  —  Gil- 
son  r.  Collin,  G6  111.  13G. 

The  servant  is,  of  course,  liable  for  tortious  acts.  —  Hewett  v.  Swift, 
8  Allen,  420;  2  Thomp.  on  Neg.  1061 ;  Bacheller  v.  Pinkham,  68  Me.  253. 


DUTIES   OF   SERVANTS—   OF   PUBLIC    OFFICERS.  253 

ligcnce  of  tho  fcllow-servunt  bo  one  of  the  risks  which  the 
pliiintifT  uiulortook  lio  cannot  recover  ;  ])ut  unless  such  })e 
tho  case  there  seems  to  bo  no  good  reason  why  one  servant 
sboukl  not  recover  against  another  for  negligence.* 

[201J  As  a  general  rule  it  seems  that  tho  person  who 
•iclually  inllicts  tho  injury  (whether  ho  bo  tho  servant  of 
another  or  not),  is  alwa3's  himself  responsible.  The  master 
who  commands  a  trespass,  and  tho  servant  who  commits  it, 
are  responsible  jointly  for  damages  (r). 

A  servant  who  merely  hires  laborers  for  his  master  is 
not  responsible  for  their  negligence.  Either  the  laborer 
who  does  the  negligent  act,  or  the  master,  or  both,  may  bo 
sued,  but  not  tho  servant  who  hired  (s).  But  a  clerk  who 
directs  workmen,  or  a  contractor  who  employs  them,  is 
Hablo  (t). 


Section  VITI. 

Neglect  of  Duties  of  Public  Officers. 

Public  officers  are,  as  wo  shall  see,  in  general  bound  to 
exercise  more  than  ordinary  care  in  the  discharge  of  their 
duties  and  all  that  is  necessary  to  notice  hero  is  that  a 
[202]  sheriff  in  relation  to  the  owner  of  the  goods  seized 
by  him,  is  nothing  more  than  a  mere  bailee,  and  is  not 
bound  to  exercise  more  than  ordinary  care  of  them,  so  far 
as  such  owner  is  concerned;  but  with  regard  to  the  person 
employing  him  to  seize,  we  shall  see  that  ho  is  bound  to 
exercise  a  high  degree  of  caro  {u). 

—  (1  Osborno  v.  Morgan,   130     Mass.  (r)  Bates  v.  PlUlng.C  I?,  .t  <".  38. 

108;  8;»  Am.    Hep.  437;    llinds   v.  Over-  (»)  Stono  r.  CartwriKlit,  C  T.  U.  411; 

•ckcr,  66  ln<l.  547;  3i    Am.  Kcp.  114;  Wilson  r.  Peto,  C  Moore, 
8t«»nbau8crf..Spraul,  lUMo.  551;  21  S.  (O  Wilson  r.  rcto,  supra. 

W.  Bep.  859.]  (M)  Post,  C'ii.  III.,  A.  1.3. 


254      NEGLECT   OF   DUTIES   REQUIRING    ORDINARY   CARE. 

Section  IX. 

Neglect  of  Duties  by  Trustees. 

The  courts  appear  from  the  time  of  Richard  the  Second 
to  have  exercised  a  jurisdiction  over  trustees,  compelUng 
them  to  account  to  their  cestui  que  trusts  for  their  manage- 
ment of  the  trust  estate  (y). 

A  trust  was  defined  to  be  "  A  confidence  reposed  in  some 
other,  not  issuing  out  of  the  land,  but  as  a  thing  collateral, 
annexed  in  privity  to  the  estate  of  the  land,  and  to  the  per- 
son touching  the  land,  for  which  cestui  que  trust  has  no 
remedy  but  subpoena  in  Chancery"  {z).  In  truth,  a  trust 
was  not  recognized  in  the  common-law  courts,  and  there 
a[)pears  to  be  no  instance  of  a  common-law  action  against 
trustees  for  negligence  (a).  And  by  the  Judicature  Act, 
1873,  s.  34  (3),  the  execution  of  trusts,  charitable  or  pri- 
vate, is  assigned  to  the  Chancery  Division  of  the  High  Court. 
It  is,  since  the  Judicature  Acts,  of  no  importance  what  the 
old  form  of  action  would  have  been,  and  under  the  new 
procedure  the  facts  would,  sooner  or  later,  show  a  neglect 
of  duty  in  the  execution  of  the  trust  which  would  be  a 
matter  for  investigation  in  the  Chancery  Division. 

[203]  I  have  had  great  difficulty  in  deciding  whether  I 
ought  not  to  place  "  trustees  "  amongst  those  persons  who 
are  bound  to  exercise  something  more  than  ordinary  care. 
A  trustee  undertakes  a  serious  responsibility,  but  often  a 
very  irksome  one,  from  which  he  derives  no  reward  or 
advantage  whatever,  and  upon  the  whole  it  should  seem 
that  ordinary  care  is  expected  of  a  trustee,  or  perhaps  it  is 


(y)  SooLewln  on  Trusts,  7tli  ed.,  p.  1.  attempt  was  abandoned ;  see  Barnadls- 

(t)  Co.  Lltt.  272  b.    [I'erry  on  Trusts,  ton  v.  Soame,  7  State  Trials,  443;  Start ». 

Sd  cd.,  BBC.  18],  Mellish,  2  Atk.  612 ;  and  see  as  to  execu- 

(m)  .Sometimes  an  attempt  was  made  tors  not  being  bailees  at  common  law, 

to  make  a  IruMlco  llnljle  In  assumpsit  at  Crosse  v.  Smith,  7  East,  246;  and  as  to 

common  law  (Jevon  r.  IJush,  1  Vern.344;  actions  for  specific  legacies  after  assent, 

Smith  r.  Jameson,  3  T.  It.  603),  but  the  Williams  on  Executors,  7th  ed.,  193. 


NEGLECT   OF   DUTIES    BY   TRUSTEES.  255 

better  to  say,  that  amount  of  caic  which  his  fiduciary 
position  tloinands,  for  he  appears  to  stand  in  a  peculiar  sit- 
uation. Trustees  often  undertake  their  duties  unwillinp^ly, 
although  they  do  so  voluntarily,  and  though  they  derive  no 
benctit,  yet  if  they  voluntarily  undertake  grave  responsi- 
bilities, they  cannot  complain  if  they  are  held  bound  to 
perform  them. 

It  has  been  often  said  that  a  trustee  must  exercise  the 
same  care  on  behalf  of  his  cesfui  que  trust  as  ho  would 
e.tercise  for  himself,  and  not  any  greater  care  {h).  This 
has  been  improved  upon  by  saying  the  same  amount  of 
care  that  "an  ordinary  prudent  man  of  business"  would 
use  in  his  own  aOairs  (c),  and  this  Mr.  Wharton  would 
further  amend  by  saying  the  same  amount  of  care  which 
a  diligent  paterfamilias  would  use  (c?).     It  is  said  by  Mr* 


(6)  Slorley   r.  Morley,  2    Ch.    C.   2;  0  App.  Gas.,  p.  10,po>r^- In  ro  Godfrey,  L. 

Bridge   r.  Guinmon,  L.  K.  Ch.  720;  Alt.  R.  W.  N.  June  2,  1883,  p.  98.     [In  ro  I'ear- 

Gen.  f.  Dixie,  13  Vcs.  534.  son,  Kng.  Ch.  Dlv.,  51  L.  T.  N.  S.  092. 

(r)  Speight  r.  Gnunt,  22  Ch.   U.,  per 
JcMol,  M.  R.,p.  739  ;;>fr  Lord  IJlackburn,  (</)  Wharton  on  Negligence,  8.  618. 


(c)  Fahnenstocks'  App.,  104  Pa.  St.  4fi;  Miller  v.  Proctor,  20  Ohio  St. 
444;  Taylor  r.  Benham,  5  How.  233;  Gould  v.  Chappell,  42  Md.  406; 
Neff's  App.,  57  Pa.  St.  91;  Campbell  v.  Campbell,  38  Ga.  304;  Paton  ». 
Farmer,  87  N.  C.  337;  Owen  v.  Campbell,  100  Mich.  34;  58  N.  W.  Rep. 
fi08;  Ilarkness  v.  Scammon,  48  Mo.  App.  13C;  Snyder's  Admr's  u.  Mc- 
Combs'  Ex'x,  39  Fed.  Kep.  292;   Lovelt  v.  Thomas,  81   Va.  245. 

In  In  re  Pearson,  Ehr.  Ch.  Div.,  51  L.  T.  (N.  S.),  G92,  "a  trustee  ad- 
vanced trust  moneys  to  a  brick  building  firm  upon  the  security  of  a  first 
mortgage  of  their  premises,  freehold  and  leasehold  and  some  of  the 
plant.  In  so  doing  he  acted  upon  the  advice  of  his  solicitor  and  ujmn  a 
favorable  report  and  valuation  made  by  a  respectable  firm  of  architects 
and  surveyors.  A  bank  of  good  standing,  moreover,  consented  to  post- 
pone a  charge  of  theirs  to  his  mortgage.  The  mortgagors  failed  three  years 
afterwards,  whereby  their  lease  of  that  part  of  the  property  upon  which 
wa«  most  of  the  clay  and  shale  necessary  for  the  carrying  on  of  the  busi- 
ness, became  forfeited.  The  remainder  of  the  property  proved  unsala- 
ble and  rapidly  went  to  ruin.  An  action  was  subsequently  brought  by 
the  cestui  que  trust  to  make  the  trustee  liable  for  the  loss  sustained  by 
them  and  it  appeared  that  the  report  and  valuation  proceeded  ex  facie  in 
«ome  respects  upon  faulty  principles.    It  was  held,  nevertheless,  apply- 


256      NEGLECT   OF   DUTIES   REQUIRING   ORDINARY   CARE. 

Justice  Story  (e)  that  *<  a  trustee  is  bound  to  perform  all 
acts  which  are  necessary  for  the  proper  execution  of  his 
trust.  But,  by  the  English  rule,  as  he  is  not  allowed  com- 
pensation for  his  services,  he  would  stand  in  the  position 
of  a  gratuitous  bailee,  and  be  responsible  only  for  losses  or 
improper  execution  of  his  trust  in  cases  of  gross  negli- 
o-ence  ;  "  upon  which  Lord  Justice  Brett  remarks  that  in 
this  passage  **  gross  negligence  is  the  neglect  of  taking  the 
same  care  which  a  person  of  ordinary  prudence  and  skill 
would  take  of  his  own  affairs  "  (/  ). 

[204]  *' I  think,"  said  Jessel,  M.  R.,  '<  in  modern 
times  the  Courts  have  not  distinguished  between  assignees 
(in  bankruptcy),  executors,  and  trustees;  but  they  have 
put  them  all  together  and  considered  that  they  are  all  liable 
upon  the  same  principles  "  (^),  that  is,  that  they  are  all 
bound  to  exercise  ordinary  care. 

In  this  treatise,  questions  of  breaches  of  trust  will  not  be 
discussed,  for  they  are  not  a  part  of  our  subject.  It  should, 
however,  be  borne  in  mind  that  the  Courts  of  Chancery 
have  very  frequently  regarded  with  great  strictness  the 
execution  of  duties  devolving  upon  trustees.  It  may  be 
that  negligence  which  would  give  a  right  of  action  against 
a  trustee,  will  not  be  ground  for  an  action  for  breach  of 
trust,  and  it  is  of  course  clear  that  a  breach  of  trust 
may  not  be  and  generally  is  not  a  negligent  but  a 
willful  act.  When,  therefore,  in  a  case  decided  in  a 
Court  of  Chancery,  we  find  the  judge  speaking  of  the 
negligence  [205]  of  a  trustee  we  must  bear  in  mind 
that  he  is  perhaps  only  speaking  of  that  neglect  which 
amounts  to  a  breach  of  trust,  but  not  such  negligence  as 


(c)  Story  on  Contracts,  s.  297.  {g)  Speight  v.  Gaunt,  22  Ch.  D.  742;  9 

(/)  Wilson  J'.  Lord  Bury,  5  Q.  B.  D.,       App.  Cas.  2. 
p.  628. 

Ing  the  rule  stated  In  Re  Godfrey  (Godfrey  v.  Faulkner,  48  L.  T.  Rep. 
N.  S.  853;  23  Ch.  DIv.  483),  that  the  trustee  had  acted  as  a  prudent  man 
would  have  acted,  and  was  therefore  not  liable." 


NEGLECT   OF   DUTIES    BY   TUD8TEE8.  257 

would  afford  n  ground  for  an  action  for  damages  for  negli- 
•/(■nce. 

A  trustee  cannot  bo  made  liahlo  for  neglecting  to  per- 
form a  trust  of  which  ho  was  ignorant  (A)- 

The  princifjal  duties  of  trustees  in  resi)cct  of  the  breach 
of  which  negligence  may  bo  charged  against  the  trustee 
are:  (1)  the  reducing  the  property  into  possession  within 
u  reasonable  time,  (  2 )  the  safe  custody  of  it,  (  3 )  the  proper 
investment  of  it,  and  (1)  the  distribution  of  it. 

(1)  Trustees  must  not  delay  in  ac(iuiring  possession  of 
the  property  of  the  trust  (/).  Executors  are  in  the  same 
position  as  trustees,  and  must  get  in  the  estate  within  such 
time  as  the  Court  under  all  the  circumstances  shall  think 
reasonable  (k).  And  trustees  and  executors  must  see  that 
the  property  is  converted  from  bad  or  indifferent  security 
into  gooil  security,  and  such  as  is  indicated  by  the  terms  of 
the  will  or  trust  (1-). 

(2)  A  trustee  ought  not  to  allow  his  co-trustee  to  retain 
money  in  his  hands  for  a  longer  time  than  is  reasonable  (/), 

(h)  Yondo  r.  Clond,  I^  U.  18  Eq.  C34.  Ilnmph.  215;  Com.  r.  Pctrcc,  10  IJ,  Mon. 

(0  Jacob  r.  Luras,  1  Bea.42G;  Caffrcy  413 J. 
r.  Darby,  6  Vcs.  48S;  Jonea  f.  IliggluB,  (k)  Sec  annmberof  cases  collected  in 

L.  R.  2  Kq.  538;  Ex  parte  Ogle,  L.  U.  S  Lewln  on  Truel.s,  7lli  cd.,  p.  2G5  et  teq.; 

Ch.  711  (goods  left  with    a  bankrupt);  [Wills'  App.,2'i  Pa.  St.  OoOj. 
Stone  f.  Stone,  L.  U.  5  Ch.  74  ;  and  West-  (0  Brlce  v.  Stokes,  11  Vcs.  319 ;  Greg- 

moreland  t-.  Holland,  W.  X.  1871,  p.  124  cry  v.  Gregory,  2  Y.  &  C.313;  Thompson 

(marrtago  settlements) ;  [Neff's  App.  i?  r.  Finch, 22  Hea.  316;  Mendear.Gaadella 

Pa.   8U    91;    licetcr  v.    Wilkinson,   61  2  Johns.  &  Hem.  250. 

(t)  Perry  on  Trusts,  3d  ed.,  §  452;  Mills  v.  Hoffman,  20  Ilun,  504.  A 
trOBtee  under  a  will,  who  in  the  exercise  of  sound  discretion  retains  an 
Investment  made  by  a  testator  in  stock  of  a  railroad,  when  it  is  gradually 
falling  in  value,  is  not  responsible  for  the  depreciation,  although  the  stock 
becomes  worthless. —  Bowker  v.  Pierce,  130  Mass.  202.  But  a  trustee  Is 
personally  responsible  for  his  omission  to  obtain  security  for  judirraent 
notes  where  he  knows  the  givers  to  be  approaching  insolvency. —  Water- 
man V.  Aldeu,  144  111.  90;  32  N.  E.  Rep.  972. 

(0  And  he  would  be  liable  for  losses  resulting  from  suflcrlng  his  co- 

i   trostee  to  retain  money  if  he  knew  he  was  not  lit  to  manage  trustee 

funds.— Perry  on  Trusts,  3d  ed.,  §  418,  citing  Clark  v.  Clark,  8  Paige,  163; 

17 


258      NEGLECT   OF  DUTIES    REQUIRING   ORDINARY   CARE. 

or  allow  it  to  remain  at  a  banker's  instead  of  invest- 
ing' (m). 

As  to  the  mode  of  carefully  keeping  securities  and  money, 
see  Lewin  on  Trusts,  pp.  271,  272. 

It  seems  to  have  been  held  that  if  trustees  were  defrauded 
the  loss  would  fall  upon  them,  and  not  upon  the  cesiuisque 
trust;  and  if  their  solicitor  was  negligent,  they  were 
answerable  for  not  employing  a  proper  person,  and  his  neg- 
[206]     ligcnt  acts  were  theirs  (n).     So,  if  the  trustee  was 


(m)    Moyle  v.  Moyle,  2  R.  &  M.  710;  (n)  Hopgood  v.  Parkin,  L.  R.  U  Eq. 

Johnson  r.Xewton,  11  Hare,  IGO;  Darke  74,79;  Sutton  v.  Wilders,  L.  R.  12  Eq. 

r.  Marlyns,  1  Bea.  525;  Swiufen  r.  Swin-  373;  Bostock  v.  Floyer,  L.  R.  1  Eq.  26. 

fen  (Xo.  5),  20  Bea.  211;  Rehden  r.  Wes-  See  also i)er  Selborne.L.C, in  Speights, 

ley, 20  Bea.  213.  Gaunt,  9  App.  Gas.  p.  11 ;  [see  infra], 

Wyman  v.  Jones,  i  Md.  Ch.  100;  Elmendorf  v.  Lancing,  4  Johns.  Ch.  562; 
State  V.  Guilford,  15  Ohio,  593. 

(?m)  If  a  trustee  keeps  funds  uninvested  beyond  the  reasonable  time, 
six  months  being  usually  allowed,  he  is  prima  facie  liable  for  interest  and 
the  burden  is  upon  him  upon  au  accounting  to  explain  or  justify  the    | 
delay.— Lent  v.  Howard,  89  N.  Y.  169.     See  In  re  Whitecar's  Estate,  147 
Pa.  St.  3G8;  23  Atl.  Rep.  575. 

In  Cann  v.  Cann,  Eng.  High  Ct.  Ch.  Div.  (51  L.  T.  N.  S.  770),  fourteen 
months  was  held  too  long  to  leave  trust  money  on  deposit  at  a  bank.  And 
in  In  re  Knight's  Estate  (21  Abb.  N.  C.  388;  4  N.  Y.  S.  Rep.  412)  the 
trustee  was  held  liable  for  funds  lost  by  the  failure  of  a  bank  in  which 
they  bad  been  deposited  for  two  years. 

So  when  he  deposited  trust  funds  in  a  bank  known  to  be  insolvent 
(Whitehead  v.  Whitehead,  85  Va.  870;  9  S.  E.  Rep.  10),  or  where  he 
deposited  funds  taking  a  certificate  payable  to  himself. —  Corya  v.  Corya, 
119  Ind.  593;  22  N.  E.  Rep.  3. 

Crane  v.  Moses,  (13  S.  C.  561),  where  a  trustee  received  Confederate 
money  just  before  the  war  and  deposited  it  with  bankers  in  good  stand- 
ing, and  died  in  the  Confederate  service,  it  was  held  that  his  estate  was 
not  liable  for  the  loss  of  the  money  because  it  became  worthless  as  cur- 
rency. But  for  trust  money  safely  secured  in  land  which  is  re-invested 
in  Confederate  bonds  that  afterwards  become  valueless  the  trustee  is 
liable.— Knight  v.  Watts,  20  W.  Va.  175. 

(n)  But  where  trustees  under  a  will  invested  money  in  government 
bonds  which  they  deposited  in  a  bank  vault,  and  the  bank  was  robbed  and 
the  bonds  lost,  and  the  trustees  obtained  through  an  agent  the  issue  of 
new  government  bonds  iu  place  of  those  stolen  and  the  agent  appropriated 
them  and  only  part  of  their  value  was  recovered,  the  trustees  were  held 


NEOLECT   OF    DUTIKS   TO   TRUSTEES.  259 

deprived  of  some  of  tlio  trust  property  by  :i  forgery,  the 
trusteo  was  answerublo  for  the  loss  (o). 

The  Jihovo  cases  (p)  are  not  overruled,  hut  they  arc 
much  shaken,  l)y  a  very  recent  decision  in  the  Court  of 
Appeals,  and  it  would  appear  that  the  old  law  heforo  the 
ahovc  decisions  (7)  was  in  accordance  with  the  most  recent 
case.  The  22  &  23  Vict.  c.  35,  s.  31,  also  provides  for  the 
cxoDcration  of  trustees  from  liability  for  the  acts  of  **  any 
buokcr,  broker,  or  other  person  with  whom  any  trust 
moneys  or  securities  may  bo  deposited,"  and  *'  for  any 
[207]  insufliciency  or  deliciency  of  any  stocks,  funds  or 
securities,  or  for  any  other  loss,  unless  the  same  shall 
happen  through  their  own  willful  default  respectively." 

The  law  has  recently  been  very  fully  and  elaborately 
stated  in  the  case  of  Speight  v.  Gaunt  (?•).  The  Master  of 
the  Rolls  (Jessel)  in  the  course  of  his  judgment,  said  :  — 

"  Tn  the  first  place,  I  think  we  ought  to  consider  what  is 
the  liability  of  a  trustee  who  undertakes  an  oflico  which 
requires  him  to  make  an  investment  on  behalf  of  his  cestui 
que  trust.  It  seems  to  me  that  on  general  principles  a 
trustee  ought  to  conduct  the  business  of  the  trust  in  the 
same  manner  that  an  ordinary  ])rudent  man  of  business 
would  conduct  his  own,  and  that  beyond  that  there  is  no 
liability  or  ol)ligation  of  the  trustee.  In  other  words,  a 
trustee  is  not  bound,  because  he  is  a  trustee,  to  conduct 
business  in  other  than  the  ordinary  and  usual  way  in  which 
similar  business  is  conducted  by  mankind  in  transactions  of 
Hieir  own.     It  never  could  be  reasonable  to  make  a  trustee 

(0)  Earns    r.    UlckBon,  30  Bea.   136;  (7)  I.cwln  on  Trusts,  p.  27o;  Ex  parte 

lOdUnd  Uy.  Co. .-.  Taylor,  8  U.  L.  C.  751.  Belchler,  Aiiib.  21S. 

{p)  Sntlon  r.  WiWlcrs  was  not  men-  (r)  .S))eight  v.  Gaunt, 22  Ch.  1).  727;  9 

tioned   In    the  judRnicnt  In  Speight  v.  App.  Cas.  2. 
Oaont,  infra. 

not  liable  for  the  lo.ss  caused  either  by  the  robbery  of  the  value  or  the  theft 
ol  the  agent.— Carpenter  v.  Carpenter,  12  R.  I.  544.  So  a  trustee  is  not 
liable  for  loss  to  the  tru.st  estate  caused  by  tliefts  of  servants  selected 
with  due  care.— Jobson  v.  Palmer,  3  Reports,  173  [181)3];  1  Ch.  71. 


2G0      NEGLKCT   OF   DUTIES   REQUIRING   ORDINARY    CARE. 

adopt  further  and  better  precautions  than  an  ordinary  pru- 
dent man  of  business  would  adopt,  or  to  conduct  the  busi- 
ness in  any  other  way.  If  it  were  otherwise,  no  one  would 
bo  a  trustee  at  all.  He  is  not  paid  for  it.  He  says :  <  I  take 
all  reasonable  precautions,  and  all  the  precautions  which 
are  deemed  reasonable  by  prudent  men  of  business,  and 
beyond  that  I  am  not  required  to  go  '  (s).  If,  therefore,  a 
trustee  has  made  a  proper  selection  of  a  broker,  and  has 
paid  him  the  money  on  the  bought-note,  and,  by  reason  of 
the  default  of  the  broker  the  money  is  lost,  it  does  not 
appear  to  me  in  that  case  that  the  trustee  can  be  liable  ((). 
My  view  has  always  been  this,  that  where  you  have  an 
honest  trustee,  fairly  anxious  to  perform  his  duty,  and 
[208]  to  do  as  he  thinks  best  for  the  estate,  you  are  not 
to  strain  the  law  against  him  to  make  him  liable  for  doing 
that  which  he  has  done,  and  which  he  believes  is  right  in 
the  execution  of  his  duty,  without  you  have  a  plain  case 
made  against  him.  In  other  words,  you  are  not  to  exercise 
your  ingenuity  for  the  purpose  of  finding  reasons  for  fix- 
ing a  trustee  with  liability  ;  but  you  are  rather  to  avoid 
all  such  hypercriticism  of  documents  and  acts,  and  to  give 
the  trustee  the  benefit  of  any  doubt  or  ambiguity  which 
may  appear  in  any  document,  so  as  to  relieve  him  from 
the  liability  with  which  it  is  sought  to  fix  him.  I  think 
it  is  the  duty  of  the  court  in  these  cases  where  there  is  a 
question  of  nicety  as  to  construction  or  otherwise  to  lean 
to  the  side  of  the  honest  trustee,  and  not  to  be  anxious 
to  find  fine  and  extraordinary  reasons  for  fixing  him  with 
any  liability  upon  the  contract.  You  are  to  endeavor 
as  far  as  possible,  having  regard  to  the  whole  transaction, 
to  avoid  making  an  honest  man  who  is  not  paid  for  the 
performance  of  an  unthankful  office  liable  from  the 
failure  of  other  people  from  whom  he  receives  no  benefit. 
I  think  that  is  the  view  which  has  been  taken  by  modern 

(f)  At  p.  739.  (i)  At  p.  741. 


NEGLECT   OF    DUTIES    BY    TRUSTEES.  2CA 

judjros,  and  somo  of  tho  older  cases  in  which  a  diffcront 
view  hu8  been  taken  wouKI  now  be  repudiated  with  indig- 
nation "  (m)- 

Lord  Justice  Lindley  said :  "A  trustee  has  no  business 
to  cast  upon  brokers  or  solicitors  or  anybody  else  tho  duty 
of  performing  those  trusts  and  exercising  that  judgment 
and  discretion  which  he  is  bound  to  perform  and  exercise 
himself.  On  the  other  hand,  a  trustee  is  not  bound  to  do 
everything  himself.  A  trustee  is  entitled  to  employ  brokers 
and  solicitors  to  do  that  which  in  tho  ordinary  course  of 
business  other  people  would  employ  brokers  and  solicitors 
to  do.  The  real  importance  of  this  case  is,  that  it  lies  be- 
tween these  two  propositions,  that  a  trustee  can  not  delegate 
his  trust,  and  that,  on  the  other  hand,  he  is  entitled  to  em- 
ploy persons  to  do  that  which  an  ordinary  man  of  business 
[209]  would  employ  an  agent  to  do  "  (x).  And  again 
he  says,  **  I  wish  most  emphatically  to  say  that  if  trustees 
are  justitied  by  the  ordinary  course  of  business  in  employing 
agents,  and  they  do  employ  agents  in  good  repute,  and 
whoso  titness  they  have  no  reason  to  doubt,  and  employ 
those  agents  to  do  that  which  is  in  the  ordinary  course  of 
their  business,  I  protest  against  the  notion  that  tho  trustees 
guarantee  the  solvency  or  honesty  of  the  agents  employed. 
Such  a  doctrine  would  make  it  impossible  for  any  man  to 
have  anything  to  do  with  a  trust"  (y). 

It  will  be  observed,  that  the  learned  judges  were  careful 
to  require  of  the  trustee  that  he  should  exercise  ordinary 
care  (at  the  least)  in  selecting  his  broker,  and  there  is  no 
doubt,  also,  that  he  must  exercise  ordinary  care  in  looking 
after  the  broker  whom  he  employs  and  the  property  over 
which  he  exercises  control  (;:). 

(«)  At  p.  74(i.  (c)  See  Jadgnient  of  Lord  Fitzgerald 

(X)  At  p.  7J6.  in  Speight  v.  Gaunt,  9  App.  Caa.  M;  tho 

(»)  At  p.  762.  Lord  Chancellor,  p.  fi. 

(«)  An  executor  applied  to  a  bank  casliier  for  interest  bearing  bonds. 
The  cashier  agreed  to  sell  him  United  States  bonds  and  he  paid  lor  them 


262      NEGLECT   OF   DUTIES   REQUIRING   ORDINARY   CARE. 

One  trustee  ought  not  to  allow  his  co-trustee  to  have 
possession  of  the  trust  funds  so  as  to  enable  him  to  dispose 
of  them  for  his  own  benefit,  and  such  trustee  is  liable  for 
the  illegal  act  of  his  co-trustee  {a). 

In  Mendes  v.  Guedalla  (b)  two  trustees  had  committed  a 
box  to  a  third  trustee  (a  stock  broker)  to  enable  him  to 
convert  the  securities  into  others,  and  it  was  held  to  be  the 
duty  of  the  two  trustees  to  ascertain,  when  the  box  was 
returned  to  the  bankers,  that  the  new  securities  were 
safe  in  it.  The  Lord  Chancellor  said:  *' I  cannot  for  a 
moment  adopt  the  argument  in  support  of  which  so  many 
authorities  were  cited,  that  a  trustee  is  not  liable  for  the 
tort  of  his  co-trustee  (c).  Of  course  he  is  not  liable  if  he 
[210]  takes  proper  precautions  within  reasonable  time  to 
ascertain  what  his  co-trustee  bus  done  with  the  property, 
and  takes  proper  steps  to  recover  any  that  has  been  made 
away  with.  But  here  nothing  of  the  kind  was  done.  The 
matter  was  allowed  to  sleep  without  any  attempt  to  ascer- 
tain that  the  trust  property  was  secure.  *  *  *  Know- 
ing that  a  new  fund  was  to  be  acquired  he  (the  trustee) 
must  have  known  it  to  be  his  duty,  in  the  exercise  of  that 
ordinary  prudence  which  a  man  uses  in  his  own  affairs,  to 

(a)  Lewis  v.  Nobbs,  8  Ch.  D,  591.  See,  applies  to  executors.  Edmonds  v.  Cren- 

however,  Hatler  r.  Butler,  7  Ch.  T).  116;  shaw,  14  Pet.   1G6;    Adair  v.  Brimmer, 

[Perry   on  Trusts,  3d    ed.    sec.  419.]—  74  N.  Y.  539;  see  Earl  of  Gainsborough 

[Purdy    1.    Lynch,  72  Ilun,  272;   25  N.  v.    Westcombe    Terra     Colta   Clay  Co. 

V.  S.  Hep.  585;Darnabyi\  Watts,  (Ky.),  Dunning  v.  Earl   of   Gainsborough,  5i 

21    8.    W.    Kep.    333;    13    Ky.    Law   R.  L.  T.  Rep.  N.  S.  UG.] 

457;  Appeal  of   Fesmlre  (Pa.);    19  Atl.  {Jj)  Mendes   r.  Guedalla,  2  Johns.  & 

Itep.  502;  25  W.  N.  C.   514;  Appeal  of  Hem.  259.    See  remarks  of  Llndley.  L.  J., 

Hatch  (Pa.),  12  AtL  Kep.  593.    But  see  on  his  case  in  Speight  v.  Gaunt,  supra. 

Laurel    County   Court   v.    Trustees   of  (c)  How  far  a  trustee  is  liable  for  the 

Laurel  County  Seminary  (Ky.),  20  S.  W.  tortious  act  of  his  co-trustee  is   not   a 

Ucp.  258;    Dyer   r.   lllley,  51  N.  J.  Eq.  question  of  negligence  merely,  but  one 

124;  26  AU.  Uep.  327.    The    same  rule  of  agency  generally. 

Without  seeing  them  or  knowing  that  they  were  in  the  bank.  About  two 
years  thereafter  upon  failure  of  the  bank  it  was  discovered  that  no  such 
bonds  had  ever  been  deposited  there.  The  executor  was  held  responsible 
for  the  loss  to  the  trust  fund.—  Key  v.  Hughes  Ex'rs,  32  W.  Va.  184;  9 
S.  E.  Rep.  77. 


NEGLECT   OF   DUTIES    BY   TKUSTEES.  263 

SCO  thiit  such  new  fiuul  luul  been  actually  acquired.  No 
man  of  ordi-nary  prudence,  who  has  intrusted  his  broker  to 
buy  stock  for  him,  would  trust  merely  to  the  broker's  state- 
ment, and  omit  to  take  any  ste])s  to  ascertain  whether  the 
stock  has  actually  been  bought.  At  least  a  person  who  did 
so  would  not  be  a  man  of  ordinary  prudence  in  the  sense  in 
which  this  court  understands  the  term." 

(3)  It  is  improper  for  a  trustee  to  lend  money  on  per- 
sonal security  (d)  ;  unless  he  is  very  expressly  authorized  to 
do  so  (e);   but  in   general  the  question  of   what  a  trustee 

(rf)  Adye  r.  Fcailleteau,  1  Cox,   24;  Bethell   v.    Abraham,    L.    R.    17  Eq.   24 

Darker.  Martyn,  1  15ea.  525;    Keble  r.  (American  funds  and  stocks).    SecI'lck- 

Thorapson,  3  B.  C.    C.    112;   Clough   v.  ard  r.  Anderson,  L.  U.  13  Kq.  60S;  Bobs 

Bond,  3  M.  *  Or.  4!IC ;  Pocock  c.  Redding-  v.  Godeall,  1  Y.  &  C.  C.  C.  617  (option  to 

Ion,  6  Ves.  790;  Watts  v.  Girdlestone,  6  refuse  to  invest  on  personal  security); 

Bea.  188;  Graves  f.  Strahan,  8  De  Gex.  but  see  Cadogan  v.  Essex,  2  Drew.  227; 

M.  *U.  291 ;  [see  iH/rrj].  Beauclark  r.   Ashburnham,  8  Bea.    322; 

(f)  Forbes   v.    Ross,  2    B.  C.  C.  430;  I^ngston     c.     <Mllvant,    G.    Coop.    3:5 

Paddon  I'.  Richardson,  7  De  G.  M.  &  G.  (trust   money   lent   to  a  trader);    [see 

563;  Pocock  t'.  Reddington,  5  Ves.  799;  note  (e)  ]. 

(d)  "  There  is  one  rule  that  is  universally  applicable  to  investments 
by  trustees  and  that  rule  is  that  trustees  cannot  invest  trust  moneys  in 
personal  securities.  If  trustees  have  a  discretion  as  to  the  kind  of 
investment,  it  is  not  sound  discretion  to  invest  in  personal  securities.''  — 
Perry  on  Trusts,  3d  ed.,  §  453,  citing  Clark  v.  Garfield,  8  Allen,  427; 
Spear  v.  Spear,  9  Rich.  Eq.  184;  Barney  v.  Saunders,  16  How.  545; 
Smith  V.  Smith,  4  Johns.  Ch.  281;  Wills'  App.,  22  Pa.  St.  330;  In  re 
Blauvelt's  Estate,  20  N.  Y.  S,  Rep.  119;  2  Con.  Sur.  458;  Dufford 
r.  Smith,  46  N.  J.  Eq.  21G;  18  Atl.  Rep.  1052;  Simmons  v.  Oliver,  74  Wis. 
638;  43  N.  W.  Rep.  5G1;  7n  re  Craven,  43  N.J.  Eq.  41G;  5  Atl.  Rep.  816. 
See  Hunt  r.  Judge  of  Probate,  S.  J.  C.  Mass.,  33  Alb.  Lav?  Jour.  508, 
where  the  purchase  by  a  trustee  under  a  will  of  certificate  of  a  deposit 
Issued  by  a  National  Bank  was  upheld  and  the  trustee  held  not  respon- 
sible for  a  loss  occasioned  by  the  subsequent  failure  of  the  bank. 

Without  clear  authority  a  trustee  is  not  allowed  to  invest  tho  trust 
funds  in  a  hazardous  mercantile  enterprise.  —  Adams  v.  Nelson  (Super. 
Ct.  Gin.),  31  Wkly.  Law  Bui.  46. 

(e)  Perry  on  Trusts,  3d  ed.,  §  453.  But  this  will  not  justify  the  trus- 
tees in  lending  to  one  of  themselves.  —  DeJarnette  v.  DeJarnettc,  41  Ala. 
708.  The  powers  and  directions  given  in  the  instrument  must  be  strictly 
toUowed.  — Ihmsen's  App.,  43  Pa.  St.  471;  Burrill  v.  Shell,  2  Barb.  457. 

Perry  on  Trusts,  g  452,  459,  400. 

One  who  .as  guardian  or  executor  loans  trust  money  contrary  to  the 


264      NEGLECT   OF  DUTIES    REQUIRING   ORDINARY    CARE. 

may  invest  in  is  one  of  construction  of  the  trust  deed  or  of 
Acts  enabling  trustee  to  invest  (/  ). 

[211]  A  trustee,  even  where  the  investment  of  the 
fund  is  left  in  his  absolute  discretion,  must  invest  in  per- 
manent securities,  and  not  in  such  as  pay  a  high  rate  for 
a  short  time  and  are  then  paid  off  at  a  lower  price  (g). 

It  is  also  imprudent  for  a  trustee  to  take  a  second  mort- 
gage (/i). 

Trustees  must  not  retain  money  in  their  own  hands 
which  by  the  trust  they  ought  to  invest  strictly  in  public 
funds  alone  (i),  and  if  they  do  they  may  be  liable  either  to 
find  the  money  or  the  amount  of  stock  which  they  ought  to 
hiive  purchased ;  but  where  there  is  any  option  as  to  invest- 
ments then  they  are  only  liable  for  principal  and  interest 
and  not  for  stock  which  they  might  have  purchased  (k). 

A  trustee  cannot  lend  trust  money  upon  mortgage  upon 

(/)SeeLewinfon Trusts, p. 281  eiseg.;  (h)  See  Lewin  on  Trusts,  p.  302;  [see 

Lewis  r.  Kobbs,  8Ch.  D.  591.    Sellingout  infra]. 

Of  the  three  per  cents  and  investing  in  a  (i)  Shephard  v.  Mouls,  4  Hare,  504. 

stock  mortgage  is  not  justified  by  the  (fc)  Robinson  v.  Robinson,  1  DeG.  M 

usual  powers  to  vary  securities;  Whit-  &  G.  256.    See  further  as  to  cases  where 

ney  v.  Smith,  L.  R.  4  Ch.  513.  the  court  will  make  the  trustee  pay  up 

iff)  Stewart  v.   Sanderson,  L.  R.  10  what  the  money  would  have  amounted 

Eq.  26;  [Wormley  r.  Wormley,  8  Wheat.  to    if    properly    invested.    Lewln    on 

421].  —  [See  note  (g)  infra].  Trusts,  p.  308  et  seq. 

requirements  of  the  statute  does  so  at  his  own  risk  and  in  case  of  loss 
is  liable  to  make  it  good.  —  Wadsworth  v.  Connell,  104  111.  369. 

(sr)  A  trustee  should  not  loan  on  unsecured  note. —  Nobles  v.  Hogp, 
86  S.  C.  322;  15  S.  E.  Rep.  359.  But  see  Loud  v.  Winchester,  64  Mich. 
23;  SON.  W.  Rep.  89G;  Appeal  of  Dickinson,  152  Mass.  184;  25  N.  E. 
Rep.  99. 

In  Appeal  of  Ilele  (132  Pa.  St.  479),  government  bonds  bought  at  a 
premium  by  a  trustee  were  considered  a  good  investment  though  they 
were  soon  after  unexpectedly  called  in  at  par  by  the  government. 

(h)  Shuey  v.  Latta,  90  Ind.  136;  17  C.  L.  J.  353;  "Whitney  v.  Martin,  88 
N.  Y.  535;  Mattocks  v.  Moulton,  84  Me.  545;  24  Atl.  Rep.  1004.  In  Gil. 
more  v.  Tuttle,  32  N.  J.  Eq.  611,  the  investment  was  made  on  the  advice 
of  counsel,  36  N.  J.  Eq.  617.  And  where  investments  are  directed  to  be 
made  in  first  mortgage  .securities,  they  cannot  be  made  in  those  of  an 
iDf.TlorllL-n.— Clark  t).  St.  Louis,  etc.,  R.  Co.,  58  How.  N.  Y.  Pr.  21. 
See  In  re  Blauvelt's  Estate,  20  N.  Y.  S,  Rep.  119;  2  Con.  Sur.  468. 


NEGLECT   or    DUTIES    IJY   TRUSTEES.  2t]0 

a  valuation  made  by  or  on  behalf  of  the  mortgagor,  and 
ought  to  employ  a  valuer  ujxfu  his  own  behalf  (/),  and  if 
trustees  are  directed  to  purcliase  real  estate,  they  must 
have  it  valued  and  see  that  the  title  is  good  (ni).  "Where 
[212]  trustees  sent  a  London  surveyor  to  value  an  hotel 
in  the  country,  and  on  his  advice,  without  any  further 
inquiry,  although  the  nature  of  the  ailvice  given  should 
have  led  them  to  make  some,  advanced  money  on  mortgage 
of  the  hotel,  and  the  hotel  turned  out  to  be  of  less  value 
than  the  money  advanced,  though  the  valuer  had  valued  it 
at  double  that  sum,  the  trustee  was  held  accountable  for 
the  money  (n). 

As  a  general  rule,  if  trustees  be  guilty  of  unreasonable 
delay  in  investing  or  transferring  the  funds,  they  will  be 
liable  for  interest  and  costs  (o). 

(4)  The  trustee  ought  to  satisfy  himself  beyond  doubt 
before  he  parts  with  the  trust  money  who  are  the  parties 
really  entitled  to  it  (jj),  and  he  will  be  held  liable  to  any 
party  who  can  establish  a  better  claim  than  the  one  to 
whom  he  paid  over  the  money  (q)^  even  if  he  acted  on 
advice  of  counsel  (?•).  He  is  not,  however,  chargeable  with 
interest  if  he  made  a  bona  Jide  mistake  (s). 

(/)  Inglo  V.  Partridge,  34  Bca.  412.—  (o)  Lewln  on  Trusts,  p.  310;    [Shipp 

[Somerset  r.  Poalett,  3  Reports,  547;  62  v.    lleitrlck,    6:5    N.    C.  320;    Owen    v. 

Law  J.  Oh.  "20;  6S  Law  T.  613;  41  Wkly.  Peebles.    42    Ala.  3:58;    Aston's  Est.,  5 

Bop.  5:54].  Whart.  228;  Andrews  v.  Schmidt,  G4  Wis. 

(m)  Eastern  Coanties  Ry.  Co.,  511.  L.  664.] 

O.  3<i5;  Ex  parte  Governors  of  Christ's  (p)  Lewln  on  Trusts,  p.  316.    Incase 

Hospital,  2  II.  &  M.  163.    It  Is  said  they  of  doubt  ho  should  apply  to  the  Court 

should  never  purchase  without  getting  under  the  Trustee's  Relief  Acts. 

the  legal  estate.    Ixswln  on  Trusts,  p.  456.  (q)  Ex  parte  Norris,  L.  R.  4  Ch.  280. 

(»)  Rudgo    f.  Gummow,  L.   R.  7  Ch.  (r)  Doyle  r.  Blake,  2  Sch.  &  Lef.  243. 

719;  Canipkln  v.  Barton,  W.  N.  June  16,  (s)  Saltmarsh  v.  Barrett,  31  L.  J.  Ch. 

1883,  p.  110.  7(33. 

(6)  A  borrower  is  bound  to  special  diligence  and  is  liable  for  slight 
neglect.— Wharton  on  Neg.,  §  6G8,  citing  Howard  v.  Babcock,  21  111. 
269;  Chiles  v.  Garrison,  32  Rio.  475;  Konntily  v.  Ashcraft,  4  Bush,  530; 
Green  v.  Hollingsworth,  n  Dana,  173;  VVoodr.  McClure,  7  Ind.  155.  So 
with  a  purchaser  at  a  tru.stee's  sale.—  Fuller  v.  Oneal,  82  Tex.  417;  IS 
S.  W.  Rep.  47'J;  Leake  v.  Watson,  68  Conn.  332;  20  Atl.  Hep.  313. 


[213]     CHAP  TEE    III. 

NEGLECT  OF    DUTIES  KEQUIRIXG  MORE  THAN  ORDINARY  CARE. 


Section  I. 


We  proceed  now  to  the  investigation  of  those  classes  of 
cases  where  the  law  demands  something  more  than  ordinary 
care.  We  have  seen  (a)  that  the  law  demands  this  sort  of 
care  where  a  person  is  acting  for  his  own  benefit  alone,  or 
professes  to  have  greater  skill,  or  where  a  higher  degree  of 
duty  has  been  undertaken,  or  where  the  law  deems  it  for 
the  public  benefit  to  require  a  greater  amount  of  care. 

Amongst  ordinary  duties  requiring  no  particular  skill  or 
care  pei'  se,  and  yet  requiring  the  greatest,  by  reason  of  their 
performance  being  for  the  sole  benefit  of  the  performer, 
are  —  Gratuitous  loan  or  commodatum  in  the  case  of  the 
Bailee.  Where  a  man  lends  another  something,  not  desir- 
ing any  return  for  it,  he  may  justly  expect  that  great  care 
will  be  taken  of  the  thing  lent  by  the  person  to  whom  he 
lends  it  (6).  The  bailor,  on  the  other  hand,  is  not  bound 
(as  we  shall  presently  see,  jjost,  Ch.  IV.)  to  take  great  care 
that  the  thing  which  he  lends  is  not  hurtful  to  the  person  to 
whom  it  is  lent. 

The  bailee  is  the  person  benefited  by  the  loan,  and  the 
bailor  has  a  right  to  demand  from  him  something  more  than 
ordinary  care.  This  is  one  of  the  principles  derived  by  our 
law  from  the  Roman  law,  and  which  has  already  been  men- 
tioned, ante,  p.  21. 

(a)  AiUe,  Ch.  1.  (b)  Coggs  v.  Bernard,  2  Raym.  916; 

Addison  on  Contracts,  (8th  ed.)  350. 

(266) 


BENEFIT    OF   THE   OWNKK.  iMi/ 

•'  The  borrower  is  bound,"  says  Ilolt,  C.  J,,  "  to  use  the 
strictest  caro  aiul  diliironco  tf)  keep  the  pood^,  so  as  to 
[214]  restore  them  back  to  the  lender  ;  becauso  the  bailee 
has  a  benefit  by  the  use  of  them ;  so  that  if  the  bailee  bo 
guilty  of  the  K'ast  neglect,  ho  will  be  answerable;  as  if  a 
man  should  lend  another  man  a  horse  to  go  westward  and  the 
bailee  go  northward,  if  any  accident  happen  to  the  horee  on 
the  northern  jouiney,  the  bailee  will  be  chargeable  (b). 

So,  also,  wherever  a  person  does  something  for  his  own 
advantage,  he  must  take  something  more  than  ordinary  care 
to  avoid  injuring  the  rights  of  another.  Thus,  a  person 
occupying  property  is  bound,  as  we  shall  see  (c),  to  take 
care  that  he  deals  with  it  so  as  not  to  injure  persons  being 
where  they  have  a  right  to  be  (d). 

Persons  who  take  money  for  admission  to  public  places, 
stands  at  races,  etc.,  are  bound  for  many  reasons  to 
exercise  great  care ;  for,  firstly,  there  is  great  obvious 
danger  in  the  fact  that  a  crowd  will  probably  be  attracted 
to  the  place  and  they  have  therefore  undertaken  a  duty 
demanding  great  care;  and  it  is,  secondl}',  a  thing  done 
mostly  for  the  benefit  of  the  owner ;  and  thirdly,  it  is  the 
duty  of  persons  who  invite  the  public  into  such  places,  to 
see  that  they  are  safe  (e).  Nor  can  such  persons  shift  their 
responsibility  by  saying  that  they   employed   a  competent 

(6)  Cog(?9  V.  Bernard,  2  Raym.  915.  285  (bridge  over  railway) ;  Scott  v.  Lon- 

(c)  Post,  8.  2.  don  Dock  Co.,  3  U.  &  C.  59«;  U  L.  J.  Ex. 

(d)  Tarry  r  Ashton,  L.  R.  1  Q.  B.  D.  17  (sugar-bag  falling  upon  custom  house 
S14;45  L.  J.  Q.  U.  2fiO  (hanging  lamp  over  officer  lawfully  on  i)rcmi8e8) ;  [soc  infra]. 
highway);  Kearney  v.  London,  H.  &  S.  (c)  Francis  v.  Cockcrell,  L.  R.  S  (J.  B. 
0.  Ry.  Co  ,  L.  R.  6  Q.  B.  759 ;  40  L.  J.  Q.  B.  501 ;  39  L.  Q.  B.  291 . 

(d)  Silvers  v.  Nordlinger,  30  Ind.  53;  Wf.ter  Co.  v.  Ware,  16  Wall.  566; 
Contrreve  o.  Smith,  18  N.  Y.  79. 

ir)  la  Canipr.  Wood,  (7(5  N.  Y.  92;  32  Am.  Rep.  282),  It  was  held  that 
a  party  letting  a  hall  for  public  purposes  holds  out  to  the  public  that  It 
is  safe,  and  he  is  bound  to  exercise  proper  care  in  providing  safe 
arrangements  for  entrances.  The  plaintiff  was  injured  by  stepping  off 
an  unguarded  piazza,  the  door  upon  which  occupied  the  same  relative 
position  to  an  upper  flight  of  stairs  as  it  did  to  the  street  door  of  the 


268  MORE   THAN   ORDINARY   CARE. 

[215]  contractor,  for  the  duty  is  of  a  positive  kind,  and 
cannot  be  delegated  (/  ).  There  is,  as  we  have  said  (g), 
in  every  invitation  a  sort  of  implied  warranty  of  safety,  by 
which  the  person  invited  is  put  off  his  guard,  and  prevented 
from  examining  with  caution  the  position  in  which  the 
inviter  has  placed  him. 

A  volunteer  also,  that  is  to  say,  a  person  voluntarily 
doing  something,  although  not  paid  for  doing  so,  nor 
requested,  is  bound  to  take  more  than  ordinary  care,  for  he 
has  chosen  to  intrude  himself  into  the  affairs  of  another. 
It  is  otherwise,  as  we  shall  see,  if  he  undertakes  to  do 
something  in  order  to  save  a  loss  (i). 

It  would  seem  to  be  the  law  that  wherever  a  person 
undertakes  to  perform  a  service  (or  is  what  the  Roman  law 
called  a  mandatory)  he  is  bound  to  bring  to  the  perform- 
ance of  such  service  that  amount  of  skill  and  care  which  the 
service  reasonably  demands,  and  which,  by  accepting  the 


(/)  See  Corporations,  pos^.Ch.  III.,  8.  (i)  Post,  Ch.  IV.    See  Wharton,  s.  69, 

6,  and  Master  and  Servant,  ante,  pp.  153  s.  534. —  [Hay  v.  Burbank  &  Jones,  61  Ga. 

et  $eq.  505.] — As  to  injury  to  a  volunteer  see  Ch. 

(g)  Ante,  Ch.  II.,  s.  2.  V.,  Contributory  Negligence. 


lower  flight. —  See  also  Currier  v.  Boston  Music  Hall  Acsociation,  135 
Mass.  414. 

But  in  Kendall  v.  Boston,  (118  Mass.  234),  where  a  person  was  in- 
jured by  the  falling  of  a  bust  in  a'  concert  hall,  there  being  no  proof  of 
negligence  in  placing  it,  the  defendant  was  held  not  liable. 

And  in  Edwards  ».  New  Yorlj,  etc.,  R.  Co.,  (98  N.  Y.  245),  where  de- 
fendant let  a  building  to  be  used  for  a  public  entertainment  —  pedes- 
trian contest  — and  one  of  the  galleries  fell  under  the  stamping  of  a 
crowd  keeping  time  with  the  music,  Injuring  plaintiff,  defendant  was 
held  not  liable,  Ruger,  Ch.  J.,  Danforth  and  Finch,  JJ.,  dissenting. 

"  While  we  may  readily  adopt  the  view  of  Dr.  Wharton  that  there  are 
no  solid  reasons  for  the  attempt  to  divide  and  classify  negligence  into 
three  degrees  —  slight,  ordinary  and  gross  —  yet  we  must  ignore  the 
teachings  of  nearly  all  the  adjudications  unless  we  concede  that  a  person 
who  (or  reward  invites  large  numbers  of  the  public  to  commit  their  lives 
and  the  safety  of  their  persons  to  his  custody,  owes  them  a  higher  duty 
than  that  Implied  by  the  terra  '  ordinary  care.'  "  —  1  Thomp.  on  Neg.  311. 

See,  ante,  p.  72  et  srq.;  post,  p.  271). 


PEUSONS   OF   SKILL.  269 

service,  bo  has  undortakcu  to  supply  (k)  ;  and  this  i.s  so, 
whether  the  mandatory  is  paid  for  his  services  or  not  (/). 
[216]  In  a  report  of  a  jiul<i;inent  of  Willes,  J.,  in  tlie 
'♦Law  Journal  "  ('«)»  ^^''^^  leunied  judge  says:  ♦'  lu  the 
case  of  a  gratuitous  bailment,  it  is  said  if  you  employ  a 
man  of  no  skill  to  ride  your  horse,  he  is  bound  to  use  such 
skill  as  he  possesses,  and  that  you  can  require  no  more, 
and  that  he  is  liable  for  gross  negligence  in  that  sense. 
But  if  you  employ  a  man  to  ride  your  horse  who  professes 
to  be  a  groom,  he  would  be  answerable  unless  he  had  com- 
petent skill  in  horso  riding."  But  although  this  may  be 
the  English  law,  us  it  certainly  was  the  Roman,  services 
would,  not  unnaturally,  influence  the  mind  of  a  jury, 
although  logically  speaking,  it  ought  not.  If  it  be  the 
law  that  the  fact  of  the  services  being  gratuitous  does  not 
alter  the  degree  of  care  required,  then  whether  gratuitous 
or  not  the  mandatory  is  bound  by  the  law  to  exercise  fskill, 
and  whether  he  has  done  so  is  a  matter  of  fact  unaffected 
by  the  legal  question. 

There  is  no  doubt  that  where  it  is  evident  that  persons 
hold  themselves  out  to  be  persons  of  skill,  they  are  bound 
to  exercise  skill  (n).     In  Jones  v.  Bird   (o),  Bayley,  J., 


(*)  See  Grill  v.  General  Iron   Screw  (m)  Grill  v.  General  Iron  Screw  Co., 

Co.,  L.  R.  1  0.  P.  p.  C12,;;er    Wlllee,  J.      35  L.  J.  C.  V.  at  p.  330. 

(n)  As  to  ordinary  skilled  workmen 
(I)  See  ante,  p.  21,  note  (y).  see  the  remarks,  ante,  p.  58. 

(o)  Jones  c.  IJlrd,  5  H.  &  A.  837. 


(A)  WhL-n  we  come  to  scrutinize  more  closely  the  cases,  we  And  that 
instead  of  differing  with  the  authoritative  Komuu  law  on  this  interestiug 
Issue,  the}  repudiate  the  scholastic  glosses,  based  ou  the  tlctiou  of 
non-remuneration,  and  hold  to  the  position  that  a  mandatory,  even 
though  he  agrees  to  act  without  pay,  is  required,  if  he  claim  to  be  an 
expert,  to  act  with  the  diligence  belonging  to  his  assumed  profession. 
Whatever  he  claims  to  do,  that  he  must  do.  If  he  claim  to  be  a  business 
man  In  the  particular  specialty,  then  he  must  act  with  the  diligence  of 
a  good  business  man  in  such  specialty.  If  ho  claim  to  be  inexperienced 
in  the  specialty,  then  he  must  act  with  the  diligence  of  a  good  business 
man  inexperieuced  in  the  specialty.  —  Whart.  ou  Neg.,  §  500. 


270  MORE  THAN  ORDINARY  CARE. 

says:  "It  is  not  enough  that  the  defendants  have  acted 
bona  fide  and  to  the  best  of  their  skill  and  judgment.  They 
are  bound  to  conduct  themselves  in  a  skillful  manner,  and 
the  question  was  most  properly  left  to  the  jury  to  say 
[217]  whether  the  defendants  had  done  all  that  any  skillful 
person  could  reasonably  be  required  to  do  in  such  a 
case  "  {p). 

Of  this  class  are  corporations  who  undertake  the  per- 
formance of  difficult  duties  in  consideration  of  the  benefits 
bestowed  upon  them  by  their  charter  or  statute  {q); 
directors  of  companies  (?■);  carriers  (s)  who  undertake 
responsible  and  difficult  duties  (beyond  their  liability 
at  common  law),  though  as  we  shall  see  as  to  carrying 
passengers,  they  appear  to  be  performing  a  duty  attended 
by  serious  danger,  and  may  be  classed  amongst  those 
persons  who  are  dealing  with  dangerous  goods.  So, 
also,  ship  managers,  as  far  as  they  are  carriers  of  passen- 
gers. Physicians,  surgeons  (0>  &c.,  would  appear  to 
belong  to  both  classes;  but  innkeepers  (w),  solicitors  (v), 
bankers  {x),  and  public  officers  (?/)  are  persons  who  have 
undertaken  duties,  not  indeed  dangerous  to  life  or  limb, 
but  difficult  to  perform,  and  involving  a  high  degree  of 
care. 

When  persons  possess  or  use  dangerous  things  they  are 
bound  to  exercise  more  than  ordinary  care  in  their  control 
of  them,  and,  indeed,  in  some  cases,  as  we  shall  see,  to  keep 
them  safe  at  their  peril.  Of  this  class  are  persons  keep- 
ing dangerous  animals  {z),  dangerous  goods  (a),  gas  (6), 
and  carriers  of  passengers  (tZ). 

(p)  CItedbyBlackburn.J.,  In  deliver-  («)  Post,s.9. 

Ing  the  opinions  of  the  Judges  In  Mersey  (r)  Post,  s.  11. 

Docks  V.  Glbljs,  L.  U.  H.  of  L.  113;  3t  L.  (x)  Post,  s.  12. 

J.  Kx.  225;  and  see  (irill  v.  General  Iron  (jr)  Post,  s.  14. 

Screw  Co.,  aujtra.  (s)  post,  s.  3. 

(<7)  /'o«t,  B.  6.  („)  Post,B.i. 

(r)  Post,  8.  7.  (6)  Post,  8.  5. 

(1)  Post,  8.  8.  (d)  Poet,  8.  8. 

«)  P9§t,  8.  10. 


DANGEROUS   THINGS.  271 

Somewlmt  similiir  to  the  case  of  possessing  or  using 
dangerous  things  is  that  of  a  man  pursuing  a  course  of  con- 
duct which  is  likely  to  prove  dangerous  and  althougli  sucli 
course  of  conchict  may  be  perfectly  legal,  or  even  for  the 
public  good,  yet  he  is  bound  to  exercise  more  than  ordinary 
care  in  the  presence  of  a  danger  known  to  himself.'  Thus, 
[218]  where  a  man,  perhaps  for  some  very  good  reason, 
18  driving  upon  the  wrong  side  of  the  road,  he  is  bound  to 
use  more  than  ordinary  care  to  avoid  collision  (e). 

Also,  as  we  have  seen,  a  man  who  employs  a  contractor 
or  some  independent  person  to  do  a  dangerous  thiiig,  is 
responsible  for  any  negligence  in  the  contractor  {f).  Thus, 
where  the  owner  of  a  house  adjoining  the  plaintiff's  era- 
ployed  a  contractor  who  negligently  cut  into  a  party-wall 
to  fix  a  staircase ;  it  was  held  that  the  employer  was 
liable,  the  fixing  of  the  staircase  being  part  of  a  hazardous 
operaticMi  {g).  "The  law,"  said  Lord  Fitzgerald,  "has 
been  verging  somewhat  in  the  direction  of  treating  parties 
engaged  in  such  an  operation  as  the  defendant's,  as  insurers 
of  their  neighbors  or  warranting  them  against  injury.  It 
has  not,  however,  reached  quite  to  that  point.  It  does  de- 
clare that  under  such  a  state  of  circumstances  it  was  the 
duty  of  the  defendant  to  have  used  every  reasonable  pre- 
caution that  care  and  skill  might  suggest  in  the  execution 
of  his  works  so  as  to  protect  his  neighbor  from  injury,  and 
that  he  cannot  get  rid  of  the  responsibility  thus  cast  on 
him  by  transferring  that  duty  to  another.  He  is  not  in  the 
actual  position  of  being  responsible  for  injury  no  matter 

(e)  Puckwell  v.  Wilson,  5  C.  &  P.  375,  66  Pa.  St.  464;  Congreve  v.  Smith,  18  N. 

mtpra.  Y.  70]. 

(/)    Supra;  Rower  r.  Pete,  1  Q.  R.  (<7)Perclval  r.  Hughes,  9  Q.  B.  D.  441; 

D.  321;   Tiirrj-   v.   Ashton,   1    Q.    R.  D.  8  App.  Gas.  443;  Sturgca  v.  Theological 

314;  Angus  r.  Dalton,  3  Q   B.  D.  85  ;  4  Q.  Ed.  Soc,  130  Mass.  414  ;   39  Ainer.  Uep. 

B.  D.  162;  6  App.  Gas.   716;   [Mercer  v.  463. 
Jackson,  64  111.  397;  Uoman  r.  Stanley, 

'  He  who  does  what  is  raore  than  ordinarily  dangerous,  is  bound  to  use 
more  than  ordinary  care. —  Morgan  v.  Cox,  22  Mo.  37<J;  Todd  v.  Cockell, 
17Cal.  98. 


272  MORE   THAN   ORDINARY    CARE. 

how  occasioned,  but  he  must  be  vigilant  and  careful,  for  he 
is  liable  for  injuries  to  his  neighbor  caused  by  any  want  of 
prudence  or  precaution,  even  though  it  may  be  culpa 
levissima.^' 

Where  a  positive  duty  is  imposed  by  statute,  it  should 
seem  that  something  more  than  ordinary  care  is  required  of 
the  person  who  has  to  perform  it,  and  it  is  certain  that 
such  person  cannot  shield  himself  by  saying  that  he  em- 
[219]  ployed  a  competent  person  (contractor  or  other)  to 
peijform  it  (h). 

So,  also,  where  a  statutory  duty  has  to  be  performed  by 
the  defendant,  the  plaintiff  has  a  right  to  calculate  upon 
its  due  performance,  and,  when  it  is  not  performed,  to  in- 
fer that  the  occasion  for  its  performance  has  not  arisen, 
and  to  act  on  that  inference  (i),  being  put  off  his  guard  by 
the  conduct  of  the  defendant. 

Upon  the  other  hand,  where  a  statute  imposes  a  duty 
with  the  object  of  preventing  a  certain  class  of  mischief,  a 
neglect  of  such  duty  cannot  be  made  the  foundation  of  an 
action  by  a  person  who  has  by  such  neglect  suffered  an  in- 
jury of  a  different  kind  (k). 

Common  carriers  are  made  liable,  as  it  is  said,  by  the 
custom  of  the  realm,  that  is  to  say,  that  the  law  deems  it 
expedient  that  they  should  be  held  strictly  liable  for  the 
safety  of  the  goods  committed  to  their  care.  Their  duties, 
as  such  common  carriers,  are,  therefore,  without  the  scope 
of  this  work  (?),  for  they  are  liable  without  any  negligence 
being  shown;  but,  even  where  this  absolute  liability  does 
not  attach,  we  shall  find  that  they  are  expected  to  exercise 
a  high  degree  of  care. 

The  contract  to  carry  passengers  is  not  within  the  duties 
of  a  common  carrier,  and  carriers  of  passengers  are  not 

(h)  Gray  v.  Fallen,  5  B.  &  S.  970;  34  L.  J.  Q.  B.  185;  L.  R.  7  H.  L,  12  (gates  o( 

L.  J.  Q.  B.  265;  and  nee  8.  C,  Corporation  level  crossing  to  be   closed   by  statute 

lierformlng   statutory  duties;    [Thomp.  left  open). 
on  Ncg  pp.  658.  905].  (;t)  Qorrls  v.  Scott,  L.  R.  9  Ex.  125. 

(0  North-Eastern  Uy.  v.  Wanless,  43  {I)  See  s.  8,  Carriers. 


CAHRiKns.  273 

therefore  insurers,  and  it  has  even  been  thouf^ht  that  the 
carrier  of  passengers  ought  only  to  bo  called  upon  to  use 
ordinary  care  ;  but  it  is  plain  that,  for  the  same  reason 
that  carriers  of  goods  arc  held  liable  for  slight  n»'gligenco, 
80  also  are  carriers  of  passengers,  viz.,  because  the  law 
thinks  it  expedient  to  compel  carefulness  in  the  interests  of 
the  public  (m). 

[220]  One  obvious  reason  why  the  law  thinks  it  expe- 
dient, in  the  case  of  common  carriers,  to  compel  careful- 
ness is,  because  of  the  confusion  and  loss  of  pro[)erty  which 
would  arise  if  carriers  of  goods  were  negligent;  and  one 
obvious  reason  why  the  law  thinks  it  expedient  to  compel 
carefulness  in  carriers  of  passengers  is  because  of  the  danger 
to  human  limb  and  life  if  such  carriers  were  negligent.  There 
are,  no  doubt,  many  other  reasons  ;  but,  whatever  the  reasons 
may  be,  we  think  it  is  plain  that  the  law  demands  some 
thing  more  than  ordinary  care  from  carriers  of  passengers. 

Thus  it  is  plain,  we  think,  from  the  cases  cited  po!<t, 
••Carriers,"  s.  8,  that  the  courts  have  treated  the  carriage 
of  passengers  by  stage  coach  as  a  matter  of  serious  public 
concern  ;  and  although  they  seem  to  use  the  words  "  ordi- 
nary care"  and  *' due  care  "  as  synonymous,  yet  it  is 
pretty  plain  that  the  judges  seem  to  have  thought  that 
some  considerable  degree  of  care,  to  say  the  least  of  it, 
ought  to  be  observed  (n).  It  is  to  be  considered  that  the 
passenger  is  there  by  invitation  and  has  paid  his  fare,  and 
therefore  the  coach-owner  has  undertaken  to  provide,  not 
indeed,  for  his  safety  in  all  events,  but  a  considerable  de- 
gree of  security.  So,  also,  it  is  clear  that  a  considerable 
degree  of  care  has  been  required  of  coach-owners  in  pro- 
viding a  safe  conveyance  (o),  so  that  they  have  been  held 
liable  even  for  latent  defects  (/;). 

(w)  Rodhond  f.  Midland  Uy.  Co., per  (n)  Redhead     r.    Midland     Ry.    Co., 

Blackburn,  J.,  L.  K.  4  Q.  U.  379;  38  L.  J.       tupra. 

Q.  B.  169;  and    see  tupra.    [Wbart.  on  (o)  Rrcmmert'.  Willlams.l  C.  A  1'.  4U. 

Neg.,  5  0271.  {p)  Sharp  v.  Grey,  9  DinK-  457;  [sco 

post,  p.  2T4J. 

18 


274  MORE   THAN   ORDINARY   CARE. 

The  reader  is  now  referred  to  the  following  sections 
in  which  the  cases  are  collected,  where,  as  it  appears  to  the 
author,  more  than  ordinary  care  seems  to  have  been  de- 
manded. The  reader  will  be  pleased  to  remember  that  the 
lan<yuase  of  the  judges  will  not  entirelj^  bear  out  the  doc- 
trine that  more  than  ordinary  care  has  been  demanded, 
the  words  "  ordinary  "  and  "  reasonable  "  being  used,  but 
[221]  evidently  (as  the  author  thinks),  in  many  cases, 
as  meaning  ordinary  and  reasonable  under  the  circum- 
stances, that  is  to  say,  more  than  ordinary  and  reasonable 
in  ordinar}-  circumstances. 


Section  II. 
l^eglect  of  Duties  of  Owners  and  Occupiers  of  Real  Property . 

The  neglect  of  their  duties  by  the  owners'of  property  has 
been  more  fully  discussed  in  a  former  chapter  (g),  and  it  is 
only  necessary  here  to  point  out  how  far  such  owners  are 
bound  to  exercise  something  more  than  ordinary  care  in 
dealing  with  their  property  so  as  not  to  injure  another. 

It  is  said  that  something  more  than  ordinary  care  is 
required  where  a  man  is  using  his  own  proj^erty  for  his 
own  private  advantage  or  pleasure  (r).  It  seems,  however, 
not  free  from  doubt  whether,  if  a  man  uses  his  property  for 
his  own  advantage  in  an  ordinary  manner,  and  so  as  not  to 
be  reasonably  likely  to  involve  danger,  he  would  be  bound 

{<7)  Ch.  II.  B.  2.  (r)  Campbell,  s.  13,  p.  15. 

(p)  Whart.  on  Neg.,  §  G33. 

'•  And  the  rule  is  declared  to  be  that  although  the  defect  was  latent 
and  could  not  be  discovered  by  the  most  vigilant  external  examination, 
yet  If  it  could  be  ascertained  by  a  known  test  applied  by  the  defendant, 
the  latter  is  liable."  —Warren  v.  Railroad  Co.,  8  Allen,  227;  Hegeman  v. 
West  U.  Co.,  IC  Barb.  533;  Meier  v.  Railroad  Co.,  64  Pa.  St.  225. 


NEGLECT  or  DUTIES  IN  RESPECT  TO  HEAL  PROPERTY.   275 

to  exercise  more  than  ordinary  care;  but  if  he  used  his 
property  in  an  extraordinary  manner  for  his  own  advan- 
tage («)  or  so  as  to  be  likely  to  involve  danger  (f)  he  would 
be  clearly  bound  to  exercise  something  more  than  ordinary 
care.  In  these  latter  cases  where  persons  undertake  extraor- 
linary  matters  or  matters  likely  to  involve  danger  they 
must  be  assumed  to  ujidertake  to  exhibit  skill  or  to  use  e.\- 
[222]  traordinary  care  (?0  and  cannot  excuse  themselves 
by  delegating  their  duty  to  some  one  else  {x). 

The  first  proposition,  however,  although  doubtful,  I 
think  may  be  supj)orted.  In  principle  it  would  api)ear  to 
be  correct,  and  Mr.  Campbell  (y)  cites  authorities  to  jus- 
tify that  position.  The  cases  cited  by  him,  however  (s), 
are  those  in  which  the  Court  presumed  negligence  from  the 
mci'e  fact  of  the  accident,  and  he  assumes  that  to  be  equiva- 
lent to  saying  that  evidence  of  slight  negligence  is  sufficient ; 
md  ho  argues  that  some  positive  and  direct  evidence  of 
negligence  ought  to  have  been  adduced  to  prove  ordinary 
negligence.  But  the  explanation  is  that  there  is  a  ditier- 
ence  between  sWght  evidence  of  negligence  and  evidence  of 

(»)  Fletcher  r.  Rylands;  [see  infra.]  (j/)  Campbell,  ss.  14, 15, 16. 

«)  Clark    f.    Chambers;    Bower    r.  (.z)  Kearney  r.  L.  B.  &  S.  C.  Ry.,  L. 

Teale,  L.  R.   1  Q.  B.  D.  321;  45  L.  J.  Q.  R.  5  Q.  B.  411 ;  6  Q.  B.  759;  Scott  r.  Lvv- 

B.  446.  erpool     Dock     Co.,    supra;     Byrne    r. 

(«)  Clark  r.  Chambers,  sttpro;  [see  Boadle,  supra;  Briggs  v.  Oliver,  25  L. 

in/fa],  J.  Ex.  163. 

(x)  Bower r.  Peate,*j<pra;  [seeinfra]. 

(."!)  The  doctrine  of  Fletcher  r.  Rylands  has  been  disapproved  by  some 
courts  in  this  country.— Marshall  r.  Welwood,  38  N.  J.  L.  339;  Garland 
•.  Towne,  55  N.  II.  57. 

It  has  been  approved  in  Wilson  v.  New  Bedlord,  108  Mass.  261 ;  Ball  c. 
N'ye,  99  Mass.  582;  and  followed  in  Cahill  v.  Eastman,  18  Minn.  324. 

(x)  Stevenson  v.  Wallace,  27  Gratt.  77, 91 ;  Chicago  r.  Bobbins,  2  Black. 
418:  Bobbins  r.  Chicaao,  5  Wall.  G57,  678. 

(")  Evansich  v.  G.  C.  &  S.  F.  Ry.  Co.,  57  Tex.  12t'.;  41  .\ra.  Rep.  586; 
Nagel  V.  Missouri  Pacific  R.  Co.,  75  Mo.  653;  42  Am.  Rep.  418;  Kansas 
Central  Ry.  Co.  v.  Fitzsimmous,  22  Kan.  GS*;;  31  Am.  Rep.  203;  Penso  v. 
McCormick,  125  Ind.  116;  25  N.  E.  Rep.  156. 

fQuestions  of  negligence  and  contributory  negligence  left  to  the  jury.) 
Contra,  St.  Louis,  etc.,  R.  Co.  v.  Bell,  81  111.  75;  25  Am.  Rep.  269. 


276  MORE  THAN  ORDINARY  CARE. 

slight  negligence,  and  so  far  from  saying  that  evidence  of 
slight  negligence  would  be  sufficient,  Cockburn,  C.  J.,  pre- 
sumed a  want  of  ordinary  care  in  the  railway  case,  and 
Channell,  B.,  made  the  same  presumption  in  Byrne  v. 
Boadle.  These  cases  were  decided  upon  the  principle  of  the 
maxim  res  ipsa  loquitur  (a),  and  when  the  fact  was  once 
allowed  to  be  evidence  of  negligence  at  all,  it  might  be  evi- 
dence equally  in  most  of  the  cases  of  slight,  ordinary,  or 
[223]  gross  negligence.  The  better  way,  as  it  is  again 
submitted,  is  to  point  out  that  in  these  cases  there  was  a  duty 
upon  the  defendants,  who  for  their  own  advantage  were 
using  their  property  in  a  manner  which  might  cause  injury, 
to  exercise  something  more  than  ordinary  care,  and  the 
question  is,  did  they  reasonably  fulfill  that  duty. 

The  grantee  of  a  market  who  takes  a  toll  for  his  own 
benefit  incurs  an  obligation  to  maintain  the  market  in  a 
state  reasonably  fit  for  the  purpose  for  which  it  was 
granted  (b),  and  if  he  erects  an  obstruction  (c),  which 
causes  danger  to  the  property  or  persons  who  frequent  the 
market  he  is  as  much  liable  as  one  who  does  so  on  a 
highway. 

The  same  principle  applies  to  theconduct  of  railway  com- 
panies with  respect  to  level  crossings.  With  respect  to 
implied  invitations  by  them  to  persons  to  cross,  as  by  leav- 
ing their  gates  open  when  they  are  by  statute  ordered  to 
keep  them  shut,  &c.,  their  duties  will  be  discussed  pres- 
ently (d).     But  apart  from  their  statutable  duty  they  are 

(a)  See  post,  Ch.  VI.  (c)  Defendants  had  placed  some  low 

(fc)  J'cr  Lush,  J.,  Lax  v.  Darlington*  spiked  railings   round  a  statue  in  the 

(Mayor  of),  48  L.  J.  Q.  B.  143;  aff.  on  app.  cattle  market. 

L.  U,  5  Ex.  D.  28 ;  49  L.  J.  Ex.  105.  (rf)  Next  pages ;  [see  infra]. 


(d)  Wharton  on  Negligence,  §  808. 

"  There  is  no  precise  rule  as  to  the  duty  which  railway  companies  owe 
to  strangers  crossing  their  lines  of  travel  except  where  the  same  is  pre- 
scribed by  statute.  They  are  bound  to  exercise  a  degree  of  skill,  pru- 
dence and  care  in  proportion  to  the  danger.  A  less  degree  of  care  is 
required  than  in  the  carriage  of  a  passenger  for  the  reason  that  there  is 


INVITATION.  277 

hy  running  trains  upon  a  level  crossing  using  their  property 
in  a  mannor  likely  to  cause  danger,  and  it  is  their  duty  to 
exorcise  something  more  than  ordinary  care  (e). 

[224]  So,  also,  as  we  have  seen  (/),  railway  com- 
panies are  bound  to  prevent  sparks  flying  from  their  engines 
upon  the  lands  adjoining  their  lines,  so  as  to  cause  injury, 
unless  they  are  protected  by  the  powers  granted  to  them 
by  Parliament,  and  where  they  are  so  protected,  must  still, 
;is  I  think,  use  something  more  than  ordinary  care  to  pro- 
vent  damage  from  a  cause  so  likely  to  bo  dangerous  {g). 

Where  a  person  invites  another  upon  his  premises  it 
should  seem  that  he  is  bound  to  exercise  more  than  ordi- 
nary care  ;  even  although  the  coming  upon  the  premises 
may  be  partly  for  the  benefit  of  the  person  invited,  for  he 
has  taken  upon  him  a  duty  of  a  high  degree  (A).  If  the 
person  giving  the  invitation  gives  it  for  his  own  benefit  alone 


\e)  Manchester  S.  Y.  Ry.  Co.  v.  Ful-  ened  gate  not  on  post,  but  goods  train 

larton,  \i  0.  15.  N.  S.  54  (engine  driver  standing  on    the    crossing,  held  on  the 

blowing  off  steam);  Stubley  v.  L.  &  N.  whole  no    Invitation    and    contributory 

\V.  Uy.  Co.,  L.  11.  1  Ex.  13;  35  L.  J.  Ex.  3  negligence  In  plalntiK). 
(placing  no  watchmen) ;  see  also  Bllbee  ( /)  Ante,  p.  s;{. 

V.  L.  B.  &S.  C.  Uy.  Co.,  18  C.  n.  X.  S.  584;  {g)  Jones  c.  Festlnlog  Ky.,  L.  11.  3  Q. 

S4  L.  J.  C.  P.   182  (100  trains  passing  in  n.  73;5;  37  L.  J.   Q.  H.  214;  Vaughan   v. 

the  day) ;  Cliff  v.  Mid.  Ry.  Co.,  L.  R.  5  Q.  Taff  Vale  Ry.  Co.,  6  U.  A  N.  (>85 ;  but  seo 

B.  258  (omission  to  keep  a  gate  keeper).  ante,  p.  S:),  note  ( n). 
«ee,  however,  Skelton  v.  L.  &  N.  W.  Ry.  (//)  Campbell,  s.  32;  Shearman, 499a, 

Co.,L.R.2C.P.  631, post,  Ch.  V.,  Con-  p.594;  [see  jV«  CO], 
trlbutory  Negligence  (ring  which  fast- 


not  the  contract  relation  between  the  company  and  the  travelar  which 
Aobsists  between  It  and  the  passenger." —  1  Thomp.  on  Neg.  417. 

Ordinary  and  not  the  utmost  care  and  diligence  is  all  that  foot  passen- 
gers can  demand  of  a  railroad  company." —  Id.  See,  also,  Beach  on  Con- 
tributory Neg.,  pp.  IDO,  191.     See  post,  p.  498. 

(/»)  '*  But  one  who  expressly  or  Impliedly  Invites  another  to  come  upon 
hte  private  grounds  is  bound  to  use  ordinary  care  and  prudence  to  the 
«nd  that  the  latter  be  not  injured  while  there." —  1  Thomp.  on  Neg.  304. 

In  Sweeny  v.  Old  Colony,  etc.,  R.  Co.  (10  Allen,  368),  it  was  hold  that 
*'  if  a  railroad  company  have  made  a  private  crossing  over  their  track  at 
grade  in  a  city  and  allowed  the  public  to  use  it  as  a  highway  and  stationed 
flagmen  there  to  prevent  persons  from  undertaking  to  cross  when  there 
le  danger,  they  may  be  liable  to  damages  to  one  who  using  due  care  is 


278  MORE  THAN  ORDINARY  CARE. 

it  is  clear  that  he  will  be  answerable  for  wb^t  is  called  slight 
nef^ligeuce;  or,  to  speak  more  correctly,  be  is  bound  to 
exercise  something  more  than  ordinary  care.  But  even 
where  the  invited  person  derives  benefit  from  coming  upon 
the  i)remises,  he  seems  to  be  entitled  to  the  exercise  of 
something  more  than  ordinary  care  on  the  part  of  the  inviter. 
Thus  where  the  person  invited  comes  upon  the  premises  in 
the  execution  of  a  contract  with  the  inviter,  and  it  is  for 

induced  to  cross  by  a  signal  from  the  flagman  that  it  is  safe  and  is 
injured  by  a  collision,  which  occurs  through  the  flagman's  carelessness." 

This  is  one  of  the  leading  American  cases  on  this  subject,  but  there  is 
no  distinction  made  here  as  to  the  degree  of  care  which  should  be  exer- 
cised. "  A  mere  passive  acquiescence,"  say  the  court,  "  by  the  owner  or 
occupier  in  a  certain  use  of  his  land  by  others  involves  no  liability;  but 
if  he  directly  or  by  implication  induces  persons  to  enter  on  and  pass 
over  his  premises  he  thereby  assumes  the  obligation  that  they  are  in  a 
safe  condition  suitable  for  such  use  and  for  the  breach  of  this  obligation 
he  is  liable  in  damages  to  the  person  injured  thereby." 

The  invitation  may  be  implied.  Where  a  private  way  was  opened  by 
the  defendant  for  his  own  convenience  and  a  bridge  buUt  over  a  creek 
which  ran  across  it  and  the  public  used  the  same  with  hds  knowledge  and 
permission  and  plaintiff  sustained  an  injury  caused  by  the  brealjing  of 
the  bridge  which  the  defendant  knew  to  be  unsafe,  though  it  was  appar- 
ently in  good  condition,  the  defendant  was  held  liable. —  Campbell  v. 
Boyd,  88  N.  C.  129;  43  Am.  Rep.  740.  See  Davis  v.  Chicago  etc.,  R.  Co., 
58  Wis.  646;  Barry  o.  New  York  Central,  etc.,  R.  Co.,  92  N.  Y.  289;  Albert 
V.  State,  66  Md.  325;  Montieth  v.  Pinkbeiner,  66  Hun,  633;  21  N.  Y.  S. 
Rep.  288.  But  see  Sweeny  v.  Barrett,  151  Pa.  St.  600;  25  Atl.  Rep.  148; 
Cusicktj.  Adams,  115  N.  Y.  55;  21  N.  E.  Rep.  673;  Howe  v.  Ohmart,  7 
Ind.  App.  32;  33  N.  E.  Rep.. 468,  citing  Welch  v.  McAllister,  15  Mo.  App. 
492;  Powers  v.  Harlow,  53  Mich.  507;  19  N.  W.  Rep.  257. 

The  managers  of  a  fair  have  been  held  liable  for  injuries  to  guests  re- 
sulting from  a  defect  in  the  building  in  which  it  was  held.—  Latham  v. 
Roach,  72  111.  179,    See  ante,  p.  72. 

In  the  case  of  Howe  v.  Ohmart  (7  Ind.  App.  32;  33  N.  E.  Rep.  468), 
the  court,  in  reviewing  the  case  of  Conradt  v.  Clauve  (93  Ind.  476), 
said :  "  It  was  held  by  the  Supreme  Court,  in  a  case  where  the  proprietors 
and  managers  of  a  public  fair  permitted  target  shooting  without  giving 
notice  to  the  plaintiff,  who  was  an  attendant  at  the  fair  with  horse  and 
carriage,  and  whose  horse  was  shot  and  killed  by  one  of  the  target  shoot- 
ers, that  the  defendants  owed  such  a  duty  to  the  public  as  required  them 
to  give  protection  against  such  injuries,  and  the  failure  to  so  protect 
persons  visiting  such  fair  rendered  the  defendants  liable  for  damages." 


INVITATION  —  CUSTOMER.  27i> 

tho  advantage  of  both  that  he  shoiikl  come  upon  the  prom- 
ises, the  iuviter  has  taken  upon  himself  a  higher  degree  of 
duty  than  if  the  person  ui)()n  the  [)reinises  were  a  mere 
licensee,  or  mere  guest  («),  to  whom  l)o  would  only  be  liable 
for  something  in  tho  nature  of  a  trap,  as  we  have  seen  (A:), 
or,  perhaps,  for  ordinary  negligence. 

[225]  The  reason  of  this  seems  to  be  that  the  invitation 
puts  the  plaintiff  off  his  guard,  implying  some  sort  of 
warranty  of  safety  {I);  so  that  it  is  the  more  incumbent 
upon  the  inviter  to  use  great  care.  The  question  of  invit- 
ation is  commented  upon  in  the  judgment  of  Brett,  M.  R., 
in  Heaven  v.  Pender  (see  pp.  12-19). 

A  question  often  arises  as  to  whether  there  has  in  fact 
[22()]  been  an  invitation,  or  whether  the  person  coming 
on  the  premises  is  only  what  is  called  a  bare  licensee  (m). 

Thus  in  the  ordinary  case  of  the  customer  going  Into  a 
shop  to  purchase  goods  (?i)  there  is  an  invitation  and  the 

(i)  Holmes  v.  N.  K.   Ry.  Co.,  L.  R.  4  (jn)  John  r.  Bacon,  L.  U.  5  C.  P.  437; 

Ex.  254;  3S  L.  J.   F.x.  161;  Southcote  v.  30  L.  J.  C.  P.  SG,');  Balchelor  r.  Forteacue, 

Stanley,  1  H.  &  F.  247;  25  L.  J.  Ex.  339;  11  Q.  B.  D.  474;  [see  infra]. 

Francis  r.  Cockrell,  supra.  (;0  Sec  Inderniaur  r.  Dames,  L.  R.  1 

(A)  AuU,Ch.\l.,B.2.  C.  P.,  per  Willes,  J.,  p.  287;  2  C.  P.  311; 

(/)  Norlh-Eastern  Co.  v.  Wanlees,  L.  36  L.  J.  C.  P.  181;  Holmes  v.  N.  E.  Hy. 

11.  7  H.  L.  12 ;  43  L.  J.  Q.   B.    185.    See,  Co.,  per  Bramwell,  B.,  supra;  [see  pott, 

also,  D.  \y.  &  W.  Ry.  Co.  v.  Slattery,  L,  p.  280]. 
R.3  App.  Cas.  1155. 

(m)  In  Parker  v.  Portland  Publishing  Co.  (69  Me.  173;  31  Am.  Rep. 
I*'-';  9  C.  L.  J.  108),  plaintiff  went  to  defendant's  newspaper  office,  late 
at  night,  to  insert  an  advertisement  in  its  paper.  The  counting  house 
being  clo.sed  he  ascended  to  the  upper  floor  where  wandering  about  the 
hall  in  search  of  a  door  he  fell  into  an  elevator  opening,  the  door  of 
which  had  not  been  closed,  and  was  Injured.  Defendant  was  held  not 
liable.  See  Sweeny  v.  Barrett,  151  Pa.  St.  GOO;  25  Atl.  Rep.  148;  supra, 
p.  278;  Faris  v.  Ilobery,  13-t  Ind.  2G9 ;  33  N.  E,  Kep.  1028, 

A  mere  passive  acquiescence  on  the  part  of  the  owner  or  occupant  in 
the  use  of  real  property  by  others  does  not  involve  him  in  any  liability  to 
them  for  its  unfitness  for  use. —  Shearman  &  Redf.  on  Neg.,  §  499;  citing 
Nicholson  v.  Erie  R.  Co.,  41  N.  Y.  525;  Sweeney  v.  Old  Colony,  etc.,  R. 
Co.,  10  Allen,  3G8;  Zoebisch  v.  Tarbell,  Id.  385;  Gillis  v.  Pennsylvania 
R.  Co.,  59  Pa.  St.  129;  Vanderbeck  r.  Ilendy,  34  N.  J.  L.  4C7,  cited  in 
Phillips  V.  Library  Co.,  55  N.  J.  L.  307;  27  Atl.  Rep.  479. 


280  MORE   THAN   ORDINARY   CARE. 

customer  has  a  right  to  expect  to  be  taken  care  of  (o),  and 
the  same  is  the  case  of  passengers  by  railway  who,  as  we 
shall  see  (/?),  have  a  right  to  expect  not  only  that  the 
premises  are  safe,  but  also  that  the  carriages  are  safe.  The 
same  rule  applies  to  all  cases  where  persons  by  their  conduct 
hold  out  to  others  that  they  may  safely  come  upon  their 
property.  Thus  where  ferrymen  put  down  a  slip  from  the 
ferry  to  the  shore  for  a  horse  to  be  led  across  (although 
they  did  not  profess  to  take  care  of  horses)  and  the  rail 

(o)  Chapman  v.  Rothwell,  El.  Bl.  &  (p)  Post,  carriers,  8.  9. 

El.  168. 

(n)  This  is  the  case  of  a  customer  going  into  a  shop  to  purchase  goods. 
There  is  an  invitation  and  the  customer  has  a  right  to  be  taken  care  of- 
"Where  plaintiff  being  in  a  store  as  a  customer  was  invited  by  the  clerk 
to  walk  into  the  dark  part  of  the  store  in  which  was  an  open  trap-door 
through  which  she  fell  and  was  injured,  defendant  was  held  liable.— 
Freer  v.  Cameron,  4  Rich.  L.  228.  See,  also,  Ackert  v.  Lansing,  48  How. 
Pr.  374;  59  N.  Y.  646;  Brosnan  w.  Sweetser,  127  Ind.  1;  26  N.  E.Rep.  555. 

So  in  Nave  v.  Flack  (90  Ind.  205),  it  was  held  a  trader  is  bound  to 
maintain  in  a  reasonably  safe  condition  the  approaches  to  his  premises 
which  are  intended  for  the  use  of  his  customers,  and  is  liable  for  injuries 
caused  by  a  breach  of  this  duty. 

In  Engel  v.  Smith  (82  Mich.  1;  46  N.  W.  Rep.  21),  the  proprietor  of  a 
store  was  held  liable  for  injuries  to  a  customer  caused  by  the  latter  falling 
into  an  unguarded  open  hatchway. —  So  where  the  customer  fell  into  an 
elevator  shaft  (Turner  v.  Klekr,  27  111.  App.  391 ;  Snyder  v.  Witmer,  82 
la.  652;  48  N.  W.  Rep.  1046;  O'Brien  v.  Tatum,  84  Ala.  186;  4  So.  Rep. 
158) ;  or  down  a  hoistway  (Clopp  v.  Mear,  134  Pa.  St.  203;  19  Atl.  Rep. 
504 ;  25  W.  N.  C.  571) ;  or  into  a  register  hole  (Hendricken  v.  Meadows, 
154  Mass.  699;  28  N.  E.  Rep.  1054) ;  or  down  stairways.— Pinney  v.  Hall, 
156  Mass.  225;  30  N.  E.  Rep.  1016;  Johnson  v.  Ramberg,  49  Minn.  341; 
n  N.  W.  Rep.  1043. 

But  where  plaintiff  went  at  night  to  defen':':.at's  house  to  buy  oats,  and 
they  went  together  to  the  barn  where  the  oats  were  kept,  and  while  de- 
fendant was  seeking  a  measure  plaintiff  walked  about  the  barn  in  the 
dark,  and  fell  through  a  hole  in  the  floor  and  was  injured,  it  was  held 
that  defendant  was  not  liable  because  the  walking  about  the  floor  in  the 
dark  was  not  invited  by  him,  nor  was  it  part  of  the  business.— Pierce 
V.  Whltcomb,  48  Vt.  127 ;  21  Am.  Rep.  120.  See  Bedell  v.  Berkey,  76  Mich- 
435;  43  N.  W.  Rep.  308;  Schmidt  v.  Bauer,  80  Cal.  565;  22  Pac.  Rep.  25G; 
Larkln  v.  O'Neill,  119  N.  Y.  221;  23  N.  E.  Rep.  563;  Huey  v.  Gahlenbeck, 
121  I'a.  St.  238;   15  Atl.  Rep.  520. 


INVITATION.  261 

was  negligently  loose  and  broken,  it  was  held  that  they 
were  liuMe;  Maiilc,  J.,  saying,  •'  suppose  it  was  tlio  duty 
of  one  to  piovido  another  with  a  chair,  1  apprehend  tluit 
duty  could  not  be  said  to  bo  fitly  and  adequately  perfornjed 
hy  providing  him  with  a  chair  having  a  tenpenny  nail 
driven  u\)  through  the  bottom  of  it   (?'). 

And  where  a  person  makes  a  pathway  and  permits  it  to 
[227]  be  used  to  his  house  ho  invites  all  persons  who 
have  any  rear^onabU^  ground  for  coining  to  his  house  to  use 
the  pathway,  and  he  would  bo  responsible  for  neglecting 

10  fence  off  dangerous  places  (s).  So,  also,  where  a  con- 
tract has  been  entered  into,  and  the  plaintiff  comes  upon 
the  premises  in  pursuance  of  the  contract,  he  comes  by 
invitation  (/). 

Where  the  plaintiff,  a  licensed  waterman,  came  upon  the 
premises  to  complain  of  a  barge  being  improperly  navi- 
gated, and  was  referred  by  defendant's  man  to  the  fore- 
man, and,  while  on  his  way  to  see  him,  he  was  injured  by 
the  fall  of  a  bale  of  goods,  it  was  held  that  whether  he  was 
tbere  by  invitation  or  was  a  bare  licensee  the  delendants 
were  liable,  but  in  the  judgment  of  the  Court  he  was  there 
by  invitation  (u). 

[228]  Where  a  railway  company  is  bound  by  statute  to 
shut  the  gates  of  a  level  crossing  while  a  train  is  approach- 
ing, and  omits  to  do  so,  it  invites  persons  to  cross  the 
line,  and  thereby  puts  them  off  their  guard  (./j),  and  is  lia- 
ble for  the  injuries  which  ensue.  The  question  of  "  invit- 
ation "  or  not,  is  a  question  of  evideace  into  which  we  need 

(r)  Waioughby  v.  Horrldge,  12  C.  B.  Smith  r.  Steele,  L.  K.  10  Q.  B.  125;  44  L 

7*2.  J.   Q.    B.  60;  Smith  r.  London  and  St. 

(•)  Lancaster  Canal  Co.  v.  Parnaby,  Katharine    Docks,  L.  K.  3  C.  V.  :{•.'•>;  ;57 

11  Ad.  &  K.  2«,  per  Tlndal,  C.  J.;  [see  L-  J.  C.  P.  217;  Wright  v.  London  and 
Graves  v.  Thomas,  96  Ind.  361;  46  Am.  N.  W.  liy.  Co.,  L.  II.  1  Q.  B.  I).  202;  43 
Bep.  727].  L.  J.  Q.  B.  570. 

(O  liolmcs  r    N.  E.  Ry.  Co.,  L.  K.  6  (.r)  N.  K.  Ry.  Co.  r.  Wanless,  L.  R.  7 

Ex.  123;  40  L.  J.  Ex.  121;  Indermaur  t-.  II.  L.  12;  43  L.  J.  Q.  B.  185;  sec  alsoStap- 

Dames,  L.  It.  2  C.  P.  311;  36  L.  J.  C.  P.  Icy  v.  L.  B.  A  S.  E.  Ry.  Co.,  L.  1^  1  Kx 

IS'-  21 :  35  L.  J.  KX.  7.    As  to  level  crossings, 

(m)  White  V.   France,  L.  R.  2  C.  P.  sec  Railways  Clauses  Act,  1SC3. 
D.    808;    46   L.    J.    C.    P.  823.    See   also 


2S2  MORE  THAN  ORDINARY  CARE. 

not  enter  at  greater  length.  The  question  chiefly  con- 
sidered here  is,  when  an  invitation  has  been  shown,  what 
sort  of  negligence  will  render  the  inviter  liable  for  damages. 


Section  III. 

Neglect  of  Duties  of  Owners  of  Dangerous  Animals. 

We  have  seen,  ante,  Ch.  II.,  s.  3,  that  owners  of  "  sav- 
age "  animals,  such  as  lions,  tigers,  etc.,  must  keep  them  at 
their  peril,  and  also  that  the  owners  of  ordinary  "  tame  " 
animals  must  exercise  the  ordinary  care  with  respect  to  them 
which  is  suited  to  their  particular  nature  and  habits. 
There  is,  however,  a  class  of  animals  differing  from  each 
of  these,  and  which  we  have  denominated  "  dangerous." 
We  intend  by  this  expression  those  kind  of  animals  which 
may  be  and  often  are,  as  a  class,  dangerous  (such  as  bulls), 
and  also  those  particular  animals  of  which  the  class  may  be 
harmless,  but  the  animal  itself  is  not  so  (as  dogs  or  cats). 
We  have  also  remarked  that  where  the  class  of  animal  is 
harmless  the  owner  is  not  answerable  in  an  action  of  negli- 
gence for  injurious  acts  done  by  this  particular  animal, 
contrary  to  the  nature  and  habits  of  its  class,  unless  he 
was  aware  of  such  mischievous  disposition  (m)  in  which 
[229]  case  the  law  says  he  must,  as  in  the  case  of  a 
savage  animal,  keep  it  at  its  peril  (n).     Where  the  qiies- 

(m)  Mason  v.  Keeling,  1  Ld.   Raym.      bldge,  13  C.  B.  N.   S.  430;  32  L.  J.  C.  P. 
606;  IJuxendln   v.    Sharpe,   2   Salk.   662      89  (horse  kicking  child), 
(bnll  running  at  a  man);  Cox  v.    Bur-  (n)  Ante,  p.  123. 


(m)  Murray  v.  Young,  12  Bush,  337;  Dearth  v.  Baker,  22  Wis.  73; 
Laverone  v.  Mangianti,  44  CaL  138;  Van  Leuven  v.  Tyke,  1  N.  Y.  515; 
Wormly  v.  Gregg,  65  111.  251;  Marsh  u.  Jones,  21  Vt.  378;  Kittredge  ». 
Elliott,  16  N.  II.  77;  Woolf  v.  Chalker,  31  Conn.  121;  Rider  v.  White,  G5 
N.  Y.  54;  Partlow  v.  Hagarty,  35  Ind.  178. 

(n)  McGuire  v.   Rjngrose.  41   La.  Ann,  1029;  6  So.  Rep.  895;  Key- 


ANIMALS.  283 

tion  of  scienter  arises  ami  tho  liability  becomes  absolute, 
the  question  of  "  nejjjligcnco  "  does  not  arise. 

It  therefore  renmins  only  to  consider  the  case  where  a 
person  has  tho  control  of  animals  which  are  notoriously 
"  dunpjcrous  ;  "  and  it  seems  most  reasonable  that  lie  should 
exercise  with  respect  to  them  something  more  than  ordi- 
nary care.  lie  has  undertaken  to  control  a  sort  of  animal 
which  notoriously  demands  more  than  ordinary  care,  and 
accordingly  the  law  imposes  a  corresponding  duty  upon 
bim.  The  particular  acts  necessary  to  control  such  an 
auimal  will  vary  according  to  circumstances.  Where  an 
agister  of  cattle  placed  the  plaintiirs  horse  in  a  Held  where 
a  l)ull  was  in  the  habit  of  coming,  and  the  bull  gored  the 
horse,  it  was  held  that  there  was  negligence,  although  the 
agister  was  not  aware  that  the  bull  was  vicious.  There 
was  ♦'  a  contract  to  take  reasonable  care,  and  the  doctrine 
of  scien(p)'  ought  not  to  be  extended  to  a  contract  to  take 
reasonable  care  "  (o). 

Horses    in    a   street  also    require    more  care  than  in  a 

')untry    road,    for    they   may  take  fright  and  injure  the 

pussers-by  (p).     A  bull  in  a  street  has  been  said  to  require 


(o)  Smith  i\  Cook,  1  Q.  B.  D.  79.  (p)  Lynch  v.  Nurdin,  1  Q.  n.  38,  was 

a  case  of  Uils  sort. 


nolds  P.  Hussey,  04  N.  II.  64;  5  Atl.  Rep.  458;  Conway  v.  Grant,  88  Ga. 
40;  13  S.  E.  Rep.  803;  Hammond  v.  Melton,  42  111.  App.  180;  Lettls  r. 
Hornin-:,  G7  Hun,  027;  22  N.  Y.  S.  Rep.  505,  distinguishing  Atwater  r. 
Lowe,  89  Hun,  150,  and  Van  Slyck  v.  Shell,  G  Laws,  302;  McCashill  p, 
Elliott,  5Strotb.  HtG;  ante,  p.  124 ;  but  seeCooleyoo  Torts,  2ded.,  p.  409; 
Webb's  Pollock  on  Torts,  p.  613;  and  dissenting  opinion  in  Lavaronl  v. 
..lanelantl,  41  Cal.  138. 

(")  Carpenter  v.  Latta,  27  Kan.  591. 

(p)  Leaving  a  horse  unfastened  or  unattended  in  a  public  highway  is 
rjgligencL'.— Bncklngham  v.  Fisher,  70  111.  121;  Norria  v.  Kohler,  41  N. 
Y.  42;  Lueserp.  Humphrey,  41  Ohio  St.  378;  Gray  r.  Second  Avenue  R. 
Co.,65N.  Y.  501;  Deville  t>.  Southern  Pacific  R.  Co.,  50  Cal.  383. 

But  it  has  been  held  not  contributory  negligence  for  one  peddling 
kindling  wood  to  leave  his  horse  untied  and  go  a  short  distance  from  the 


284  MORE  THAN  ORDINARY  CARE. 

the  utmost  care  (^),  in  a  field  it  would  require  less  ;  but  in 
anv  case  it  is  submitted  that  something  more  than  the 
ordinary  care  required  to  control  animals  of  a  harmless  or 
domestic  character  must  be  used.  It  seems  to  be  doubtful 
whether  a  bull  is  a  dangerous  animal  (r). 

In  the  argument  in  Mason  v.  Keeling  (s),  cases  aremen- 
[230]  tioned  where  an  action  was  held  maintainable  with- 
out alleging  scienter,  viz.,  a  case  of  a  pair  of  young  horses ; 
an  ox  getting  loose  from  a  stall;  a  monkey  biting  a  child; 
and  a  chained  fox  ;  and  it  was  replied  that,  whatever 
mi^ht  be  the  case  with  respect  to  those  animals,  a  dog  is  a 
domestic  animal,  and  does  not  require  such  a  guard  to  be 
set  over  it  as  other  animals  which  are  not  so  familiar  to 
human  kind,  and  consequently    may  be    supposed   to   be 

(g)  Ficken  v.  Jones,  28  Gal.  618;  bat  (r)  See  Wharton,  b.  910. 

see  tn/'ra,  Tillettr.  Ward,  lOQ.  B.  D.  17;  (s)  Mason   v.  Keeling,  1  Ld.  Baym. 

—  [Baird  v.  Vaughn    (Tenn.),  15  S.  W.  606. 
Rep.  734]. 

wagon  to  solicit  a  customer. —  Wasmer  v.  Delaware,  etc.,  R.  Co.,  80  N. 
Y.  212;  36  Am.  Rep.  608.  See  Southworth  v.  Old  Colony,  etc.,  R.  Co., 
105  Mass.  342. 

A  person  who  drives  an  unmanageable  and  vicious  stallion  into  a 
number  of  vehicles  standing  near  the  highway  at  a  county  fair  is  responsi- 
ble for  the  damage  done.—  Clore  v.  Mclntire,  120  Ind.  262;  22  N.  E.  Rep. 
128. 

(s)  But  where  the  cow  of  defendant,  which  was  in  charge  of  a  drover 
employed  by  him,  while  passing  along  the  street  ran  to  the  side  of  the  road 
and  without  any  negligence  on  the  part  of  the  drover  broke  in  the  plain- 
tiff's door  which  was  shut  and  latched,  the  defendant  was  held  liable. 
The  court  distinguished  the  case  from  Tillett  v.  Ward,  saying,  •'  But  it 
seems  to  me  that  it  would  carry  the  exception  much  too  far  to  hold  that 
a  person  who  closes  and  fastens  the  door  of  his  house  in  the  usual  and 
ordinary  way  loses  his  right  to  claim  immunity  from  invasion  of  this 
kind."—  County  Court  of  Old  Chester.  See  12  Law  Bull.  279.  See  Hill 
V.  Applegate,  40  Kan.  31 ;  19  Pac.  Rep.  315. 

(i)  Scott  V.  Groves,  56  Vt.  499 ;  48  Am.  Rep.  814 ;  Glidden  v.  Moore,  14 
Neb.  84;  45  Am.  Rep.  98;  Meier  v.  Shrunk,  79  la.  17;  44  N.  W.  Rep.  209. 

(«)  Graham  v.  Payne,  122  Ind.  403;  24  N.  E.  Rep.  116.  Whart.  on 
Neg.,  §911;  Oakes  ».  Spaulding,  40  Vt.  347.  By  statute  in  that  State 
proof  of  scienter  is  dispensed  with  between  August  1  and  December  1.— 
Town  tj.  Lamphlre,  37  Vt.  52. 


ANIMAI^.  285 

nioro  easily  irritated  to  do  mischiet'.  And  in  the  jiul;;nicnt 
of  Holt,  C.  J.,  it  i«  said,  *♦  For  there  is  a  great  differenco 
between  horses  and  oxen  in  which  a  man  has  a  valuable 
property  and  which  arc  not  so  familiar  to  mankind,  and 
<l()g«.  Tlio  former  the  owner  ought  to  confine,  and  take 
nil  reasonable  precaution  that  they  do  no  mischief,  other- 
wiso  an  action  will  lie  against  him  ;  but  otherwise  with 
dogs  before  ho  has  notice  of  some  mischievous  quality." 
Id  Tillett  v.  Ward^  an  ox  was  being  driven  through  the 
streets  and  entered  the  open  doorway  of  the  plaintiff's 
shop  and  damaged  his  goods.  The  County  Court  judge 
found  that  there  was  no  negligence,  and  the  Divisional 
Court  held  that  the  defendant  was  not  liable.  They  said 
that  the  owner  of  animals  in  a  field  is  bound  to  keep  them 
from  trespassing,  but  when  an  injury  is  done  by  them 
whilst  on  the  highway,  or  on  unfenced  land  immediately 
adjoining  the  highway,  the  owner  is  not  liable  unless 
[231]  negligence  is  proved  (s).  It  has  been  held,  how- 
ever, that  a  scienter  must  be  proved  to  make  a  man  liable 
for  his  bull  running  at  another  man  (<)  ;  and  the  same  has 
been  held  with  respect  to  rams  {u).  In  the  case  of  a  mon- 
key (x),  it  seems  that  the  sort  of  knowledge  which  would 
affect  the  defendant's  liability  was  more  one  of  general 
knowledge  of  the  propensities  of  that  kind  of  animal, 
though  particular  knowledge  was  no  doubt  alleged. 


Section  IV. 

Neglect  of  Duties  by  Owners  of  Dangerous  Goods ^  <&c. 

There  can  be  no  doubt  that  the  owners  or  controllers  of 
dangerous  goods  are  bound  to  exercise  more  than  ordinary 

(»)  Tlllcltr.  Ward.lOQ.  H.  D.  17;  [boo  (u)  Jackson  v.  SmlthBon.  15  M.  *  W. 

**Aol-  561. 

(0  nudaon  v.  RoberU. 6  Ex.699;  20  {,x)  May  v.  Hurdctl, og.  U.  101. 

L.J.  Ex.  293;  (sec  infra]. 


286  MORE  THAN  ORDINARY  CARE. 

care,  as  for  instance  ia  the  use  of  a  gun  (?/),  or  in  the  use 
[232]     of  fireworks    (z);  for  they  have    not    only  taken 

(2/)  Dixon  r.  Bell,  5  M.  &  S.  198  (allow-  Clark  v.  Chambers, 47  L.  J.  Q.  B.  429;  L. 

Ing  girl  to  take  a  gun), and  see ;jer Lord  R.  3  Q.  B.  D.  327. 
Denman  In  Lynch  v.  Nurdin,  1  Q.  B.  29; 

Deanr.  Clayton,  7  Taant.  488  (defendant  (z)  See  Scott  v.  Shepherd,  2  W.  Bl. 

intentionally,  not   carelessly,  put   dog  892  (trespass  by  throwing  a  equib) ;  King 

spikes    In  his  wood,  trespass) ;  but  see  r.  Ford,   1    Stark.    421    (negligence    in 

Jordin  f.  Crump,  8  M.  &  W.  782;  Ilott  v.  schoolmaster  allowing  pupils  to  use  fire- 

Wilkes,  3  B.  &  Aid.  304  (spring  guns);  works).—  [Jenne  v.  Sutton,  43  N.  J.  L. 

Bird  v.  Holbrook,  4    Bing.  628   (spring  257;    39  Am.  Rep.  578;  Bradley  v.  An- 

gun,  plaintiff  trespasser) ;  Shearman,  ss.  drews,  51    Vt.    530;    Fisk   v.  Wait,  104 

21  and  587;  see  these  cases  commented  Mass.  71;  Calvin  v.  Peabody,  155  Mass. 

on  in  Lynch  v.  Nnrdln,  1  Q.  B.  29;  and  in  101]. 


(y)  Neglect  of  Duties  by  Owners  of  Dangerous  Goods.  —  Morgan 
V.  Cox,  22  Mo.  373  (plaintiff's  servant  shot  by  careless  handling  of  gun). 

Castle  V.  Duryea,  42  Barb.  480;  affirmed  2  Abb.  Ct.  App.  327  (colonel 
of  regiment  held  liable  for  injuries  by  firing  at  regimental  drill). 

But  not  after  he  had  dismissed  his  command.  —  Moody  v.  Ward,  13 
Mass.  219. 

See  Webb's  Pollock  on  Torts,  pp.  615,  618,  citing  Conklin  v.  Thomp- 
son, 29  Barb.  218;  Cole  v.  Fisher,  11  Mass.  137;  Chataigne  v.  Bergeson, 
10  La.  Ann.  699;  Chiles  v.  Drake,  2  Mete.  (Ky.)  151,  and  other  cases. 

(c)  Poisonous  Drugs.  —  Norton  v.  Sewell,  106  Mass.  143  (selling 
laudanum  for  tincture  of  rhubarb). 

Walton  V.  Booth,  34  La.  Ann.  913  (selling  sulphate  of  zinc  for  epsom 
salts). 

Brunswig  v.  White,  60  Tex.  504;  8  S.  W.  Rep.  85  (selling  morphine 
for  quinine). 

Quinn  v.  Moore,  15  N.  Y.  432;  Hansford  v.  Payne,  11  Bush,  381; 
Davis  V.  Guarnieri,  45  Ohio  St.  470;  15  N.  E.  Rep.  350;  Thomas  v.  Win- 
chester, 2  Seld.  397. 

In  Fleet  v.  Hollenkamp,  (13  B.  Mon.  219),  defendant  was  held  abso- 
lutely liable,  notwithstanding  any  degree  of  care  that  he  should  have 
used  for  his  mixture  of  poison  vpith  ordinary  drugs. 

Where  a  statute  made  it  criminal  to  sell  poison  w^ithout  a  label,  one 
who  sold  it  without  a  label  but  who  warned  the  purchaser  of  its  char- 
acter, was  held  not  liable  in  a  civil  action,  if  the  purchaser  failed  to  heed 
llu;  warning  and  took  an  overdose.  —  Wohlfahrt  v.  Beckert,  92  N.  Y.  490; 
44  Am.  Rep.  406. 

In  Gwynn  v.  Duffield,  (66  la.  708;  24  N.  W.  Rep.  523),  it  was  held  that 
where  a  person  went  with  a  prescription  to  an  apothecary  to  have  the 
medicine  called  for  put  up,  and  the  apothecary  made  a  mistake  in  the 
drug  and  led  the  person  to  believe  the  jar  from  which  the  drug  was 
tJiken  contained  the  drug  he  wanted,  and  he  proceeded  to  help  himself, 


DANGEROUS    GOODS.  287 

upon  tlioin  a  matter  or  business  requiiiu<];  great  cure,  hut 
the  law,  having  regard  for  huniau  life  and  safety,  demands 
>'reut  care  from  them.  This  policy  of  the  law  applies,  as 
we  have  already  pointed  out,  to  other  matters  besides  dan- 
<»erous  goods,  viz. :  to  a  dangerous  use  of  real  property  (a). 
It  may  even  bo  doubted  whether  in  some  cases  it  would 
uot  be  held  that  a  man  must  keep  dangerous  goods  at  his 
own  peril.  Where  a  prudent  man  would  reasonably  fore- 
see great  danger  there  he  would  also  exercise  great  care, 
and  culpable  negligence  is,  as  we  have  said  (6),  doing  an 
act  which  a  reasonably  careful  man  would  foresee  might 
be  productive  of  injury  and  which  he  would  abstain  from 
doing. 

So  persons  are  bound  to  use  the  very  greatest  care  in 
the  use  of  poisonous  drugs  (c),  or  highly  explosive  ma- 
[233]     terials    (d),  or  materials  otherwise   dangerous  or 


(a)  Supra.  groand  (amongst   others)    that  he  was 

{b)  Ante,  p.  I.  bound  to  exercise   more  than  ordinary 

(c)  Shearm,  8.  592.  In  Thomas  et  w-ror  care.    In    Heaven  r.  Tender,  Brett,  M. 

r.  Winchester,  (!  N.  Y.  397,  llie  defendant  K.,  said  he  doubted  whether  llie  case  of 

sold  through    Ills  assistant  a  bottle   of  Thomas   c.   Winchester   did  not  go  too 

belladonna  for  dandelion  to  a  druggist  far;  see  his  judgment;  ante,  pp.  l'J-19. 
who  sold    It  to  another  druggist,  who  (rf)  Shearm.  s.  S'.hJ;  Carter  v.  Towne, 

sold  to  the  female  plainiitf,  and  defend-  98  Mass.  567;  [see  infra], 
ant  was  held  liable  for  negligence  on  the 


he  was  a  trespasser,  and  the  apothecary  was  uot  liable  for  resulting 
injuries. 

So  where  a  manufacturer  used  a  common  mordant  in  dyeing  cloth,  he 
was  held  not  liable  to  a  purchaser  poisoned  in  handling  the  cloth,  the 
injury  being  tlie  first  known  instance.  —  Gould  v.  Slater  Woolen  Co.,  147 
Mass.  315;  17  N.  E.  Rep.  531. 

(rf)  Elxplosive  Materials. —  Wellington  v.  Downer  Kerosene  Oil  Co., 
104  Mass.  G4;  Elkins  v.  McKean,  72  Pa.  St.  493;  Denver,  South  Park,  etc., 
R.  Co.  V.  Conway,  8  Colo.  1 ;  64  Am.  Kep.  537;  Twakey  v.  Fruln,  DO  Mo. 
104;  8  S.  W.  Rep.  784;  Allison  v.  The  Western,  etc.,  R.  Co.,  (34  N.  C.  384; 
Colton  V.  Onderdonk,  69  Cal.  155.     See  Webb's  Pollock  on  Torts,  p.  G15. 

One  shipping  dangerous  goods  without  giving  notice  of  their  danger- 
ous character,  is  liable  for  injuries  caused  thereby.— Boston,  etc.,  R. 
Co.  V.  Shanly,  107  Mass.  5G8. 

To  hold  the  carrier  liable  in  the  absence  of  negligence  on  his  part,  he 


288  MORE    THAN   ORDINARY   CARE. 

destructive  (e),  and  of  the  same  class  of  cases  are  those  of 
placinor  a  dangerous  instrument  upon  a  highway  (/). 

Numerous  statutes  have  been  from  time  to  time  passed, 
inflicting  penalties  upon  persons  carelessly  dealing  with 
dangerous  goods,  but  these  are  beyond  the  scope  of  the 
present  work,  which  deals  only  with  those  breaches  of 
duty  for  which  a  right  of  action  arises,  and  not  with  ques- 
tions of  public  safety  and  police  (g).     The  imposition  of 

(c)  Brassr.  MalUand,  seeperCromp-  reviewed  by  Cockburn,  C.  J. 
ton,  J.,  6  El.  &  B.  470  (chloride  of  lime  (g)  These  statates  have  been  consol- 

etowed  In  vessel);  Farrant  v.  Barnes,  11  idated  in  the  38  &  39  Vict.  c.  17.    As  to 

C.  B.  N.  S.  553.—  [Bishop  v.  Weber,  139  carriage  by  railway,  see  8  &  9  Vict.  c.  20; 
Mass.  411  (nnwholesome  food)].  by  tramways,  33  &  34  Vict.  c.  78;  aa  to 

(/)  Clark  V.  Chambers,  L.  R.  3  Q.  B.      ehipping,  36  &  37  Vict.  c.  85,  ss.  23-28;  3S 

D.  327;  47  L.  J.  427,  where  most  of  the      &  39  Vict.  c.  17,  ss.  42, 101.    As  to  pefero- 
cases  above  cited  are  very  elaborately     leum,  &c.,  see  also  34  &  35  Vict.  c.  106. 


must  be  shown  to  have  been  aware  of  their  dangerous  character. —  Par- 
rott  V.  Wells,  15  Wall.  524. 

In  Illinois  Central  R.  Co.  v.  Phillips,  49  111.  234,  and  Illinois  Central 
R.  Co.  V.  Phillips,  55  111.  194,  the  explosion  of  a  steam  boiler  was  held 
prima  facie  evidence  of  negligence. 

But  in  Spencer  v.  Campbell,  (9  Watts  &  S.  32),  where  a  boiler  exploded 
killing  plaintiff's  horse,  plaintiff  was  held  bound  to  show  care,  skill  and 
diligence. 

In  Losee  v.  Clute,  (51  N.  Y.  494),  the  manufacturer  and  vendor  Of  a 
steam  boiler  was  held  not  liable  to  any  other  than  the  vendee  for  dam- 
ages caused  by  its  exploding  because  of  its  defective  construction. 

(/)  Railroad  Company  v.  Stout,  17  Wall.  659;  Hydraulic  Works  t>.  Orr, 
83  Pa.  Si    332. 

Where  one  placed  a  barrel  of  fish  brine  on  a  public  street,  he  was  held 
liable  to  the  owner  of  a  cow  which  drank  it  and  died,  though  the  brine 
was  poured  into  the  street  by  some  third  person.—  Henry  v.  Dennis,  93 
Ind.  452;  47  Am.  Rep.  378.  See  Fennell  v.  Seguin  St.  Ry.  Co.,  70  Tex. 
670;  8  S.  W.  Rep.  486. 

Unguarded  slack  pile.— Union  Pac.  Ry.  Co.  v.  McDonald,  152  U.  S. 
262;  14  S.  Ct.  Rep.  619,  affirming  42  Fed.  Rep.  579. 

Escaped  caustic  soda.—  Atlanta  Cotton  Seed  Oil  Mills  v.  Coffee,  80  la. 
145;  4  S.  E.  Rep.  759. 

Dangerous  barbed  wire  fence.—  Sisk  v.  Crump,  112  Ind.  504;  14  N.  E. 
Rep.  381;  Gould  u.  Bangor  &  P.  R.  Co.,  82  Me.  122;  19  Atl.Rep.  84;  Boyd 
'•.  Burkett  (Texas  Civ.  App.  ),  27  S.  W.  Rep.  223.  But  see 
Uobertaon  v.  Wooley,  5  Tex.  Civ.  App.  237;  23  S.  W.  Rep.  828;  Worth- 
ington  V.  Wade,  82  Tex.  26;   17  S.  W.  Rep.  520. 


OA8    COMPANIES.  289 

penalties  docs  not  take  awa}'^  the  right  of  action,  if  such 
[234]  a  ripjht  exists  apart  from  the  statute ;  but  it  does  not, 
perhaps,  follow  that  where  a  statute  orders  somothinuj  to 
ho  done  and  imposes  a  penalty,  that  a  right  of  action  is 
criveu  (A)- 


Section  V. 
Gas   Companies^  Fitters^  dec. 

With  respect  to  the  duties  of  gas  companies,  and  persons 
having  the  management  of  gas,  it  would  appear  that  they 
are  bound  to  exercise  the  very  greatest  care,  for  they  are 
using  a  material  difficult  to  manage,  and  of  a  very  danger- 
ous character  in  many  ways,  for  it  is  at  once  explosive 
and  poisonous;  and,  not  unreasonably,  these  companies 
are  bound  in  heavy  penalties  by  their  acts  to  exercise 
the  greatest  care,  and  even  to  become  in  some  sense  in- 
surers (t). 

It  is  true  that  the  language  sometimes  used  is  that  such 
companies  are  only  liable  for  ordinary  negligence;  but  it 
is  added  that  *♦  those  who  carry  on  operations  dangerous  to 

(A)  AUilnson  v.    Newcastle    Water-  (t)  HIpklns  v.   lilrmlngham  Gas  Co., 

work*.  I..  K.  i.  Ex.  IJ.  4-Jl;  46  L.  J.  Ex.      6  II.  &  N.  250  (gaa  fouling  a  well). 
TT.'i;  commenting  on  Coach  v.  Steel,  3  E. 
AB.4U2. 


(0  Where  the  pipes  of  a  pas  company  were  injured  by  acity  construct- 
ing a  sewer  so  that  gas  escaped  and  destroyed  the  plaintiff's  plants  in  his 
greenbouse,  the  earth  not  having  been  properly  packed  about  the  pipes, 
jthe  company  was  held  liable. —  Butcher  u.  Providence  Gas  Co.,  12  R.  I. 
1149. 

The  fact  that  a  city  widens  its  sidewalk  so  that  a  gaa  box  is  in  the 
jcenter  Instead  of  near  the  edge  of  the  walk,  affords  no  excuse  to  the  com- 
pany for  failing  to  keep  the  walk  safe  for  foot  passengers.  —  District  of 
Columbia  v.  Washington  Gas-Llght  Co.,  20  I).  C.  3H.  But  see  Grundy  t?. 
<^lty  of  Janesville,  84  Wis.  574;  54  N.  W.  Kep.  1085;  Armstrong  v.  Med- 
Jury,  67  Mich.  250;  34  N.  W.  Rep.  566. 

19 


290  MORE   THAN    ORDINARY   CARE. 

the  public  are  bound  to  use  all  reasonable  precautions  "  (^'), 
and  as  '*  reasonable  precautions  "  in  dealing  with  such  a 
material  as  gas  are  equivalent  to  taking  the  greatest  possi- 
ble care,  it  seems  misleading  to  say  that  such  companies 
are  only  liable  for  ordinary  negligence. 

[235]  Gas  companies  are  liable  for  neglecting  to  repair 
their  j^ipes,  and  are  bound  to  inspect  them  so  as  to  become 
aware  of  any  escape ;  and  if  such  escape  has  existed  for 
several  days,  and  was  discoverable  by  the  company  if  they 
liad  exercised  a  proper  supervision,  they  are  liable;  and  it 
is  no  answer  that  immediately  upon  express  notice  they 
sent  to  do  the  repairs  but  sent  too  late  (?). 

They  are  bound  not  only  to  keep  in  order  their  own 
works,  but  they  are  bound  to  exercise  care  in  repairing  or 
investigating  pipes,  &c.,  of  persons  to  whom  they  are  sup- 
plying gas  (wi).  Such  persons  ought  to  give  notice  of  an 
escape  by  way  of  warning  to  the  company  ;  and  in  the 
absence  of  such  notice,  or  some  reasonable  opportunity  of 
knowing,  the  company  would  not  be  liable  (n). 


(*)  Blenklronr.  Great  Cent.  Gas  Co.  v.  Albany  Gas  Co.,  46 Barb.  26*;  affirmed, 

2  F.  &  F.  440.  '  44  N.  Y.  459. 

(I)  Moee  V.  Hastings  Gas  Co.,  4  F.  &  (m)  Lannen  v.  Albany  Gae  Co.,  supra; 

F.  324;  [see  infra].  [Kateele  v.    Philadelphia,  S.  C.  Pa.,  17 

[m)  Burrows  i;.  Marah  Gas  Co.,  L.  R.  Rep.    377;  Hunt  t;.  Lowell   Gas    Co.,   1 

5  Ex.  67 ;  V  Id.  96 ;  41 L.  J.  Ex.  46 ;  Lannen  Allen,  343 ;  s.  c.  3  Id.  418.] 


(/:)  Butcher  u.  Providence  Gas  Co.,  12  R.  I.  149;  Bartlett  v.  Boston 
Gas-Light  Co.,  122  Mass.  209;  Finnegan  v.  Fall  River  Gas-Works  Co., 
1C9  Mass.  311;  34  N.  E.  Rep.  623.  But  see  Schmeer  v.  Gaslight  Co.,  65 
Ilun,  378;  20  N.  Y,  S.  Rep.  1G8. 

(0  Emerson  v.  Gas  Co.,  3  Allen,  410;  Holly  u.  Boston  Gas  Co.,  8  Gray, 
123-,  Hunt  V.  Lowell  Gas-Light  Co.,  8  Allen,  169. 

In  Smith  V.  Boston  Gas-Light  Co.,  129  Mass.  318,  gas  escapedin  a 
room  where  there  were  no  gas  fixtures,  from  a  cracli  in  the  pipe,  causing 
the  death  of  plaintiff's  mother  and  rendering  plaintiff  insensible.  The 
company  was  held  liable  though  it  had  no  notice  of  the  defect. 

See  Holly  v.  Boston  Gas-Light  Co.,  8  Gray,  123;  Hutchinson  r.  Boston 
Ga.s-Light  Co.,  122  Mass.  219. 

(u)  Upon  the  question  of  due  care  by  the  defendant  company  notices 
Issued  by  it  to  consumers  calling  attention  to  the  fact  that  leaks  are 


CORrOKATIONS    I'EKFOKMINO    STATUTOKV    DfTlKS.       291 

A  iiasfittcr  was  cinployod  to  repair  a  gas  motor.  Ho 
took  it  away  a lul supplied  a  temporary  pi[)o.  The  plaintiff, 
a  servant,  in  tlio  course  of  his  duty,  and  without  any  negli- 
gence, went  to  light  the  gas,  and  was  injured  by  the  negli- 
gence of  the  gasHtter.  Lopes,  J.,  after  consideration  said  : 
[236]  "  I  think  the  plaintiff's  right  of  action  is  founded 
on  i\  duty  which  I  believe  attaches  in  every  case  where 
a  person  is  using  or  is  dealing  with  a  highly  dangerous 
thing,  which  unless  managed  with  the  greatest  care  is  cal- 
culated  to  cause  injury  to  bystanders.  To  support  such 
a  right  of  action  there  need  be  no  privity  between  the 
party  injured  and  him  by  whose  breach  of  duty  the  injury 
is  caused,  nor  any  fraud  or  misrepresentation  or  conceal- 
ment, nor  need  what  is  done  by  the  defendant  amount  to 
a  public  nuisance.  It  is  a  misfeasance  independent  of 
contract  "  (o). 


Section  VI. 

Corporations  Performing  /Statutory  Duties. 

Where  a  i)erson  is  intrusted  by  statute,  or  charter,  or 
prescription,  with  the  execution  of  certain  duties,  the  law 
demands  of  him  that  he  should  use  something  more  than 
ordinary  care  in  the  performance  of  his  duties.  In  most 
cases  it  is  very  reasonable  that  this  should  be  so,  for  the 
person  so  intrusted  has  received  from  the  Legislature  some 
benefit  which  has  induced  him  to  undertake  the  burden  of 
the  duty;  and  even  where  this  may  not  be  so,  where  a 
statute  enjoins  a  person  to  do  a  thing,  it  would  be  absurd 
to  suppose  that  the  thing  may  be  done  anyhow,  and  yet 
the  person  not  be  liable,  and  it  would  be  very  reasonable 

(o)  Parry  r.  Smith,  L.  R.  4  C.  P.  D.  325;  48  L.  J.  C.  P.  731. 

liable  to  be  caused  by  dig2;in!:;j  of  others  In  the  street,  etc.,  arc  admissi- 
ble.—Powers  V.  Boston  Gas-Li<;ht  Co.,  158  Mass.  257;  33  N.  E.  liep.  633. 


292  MORE   THAN   ORDINARY   CAKE. 

to  suppose  that  the  law  intends  that  the  thing  shall  be  done 
with  more  than  ordinary  care. 

In  the  execution  of  a  duty  imposed  by  statute,  a  person 
is  bound  to  use  his  best  skill  and  diligence  (k). 

He  is  bound  not  only  to  act  bona  fide,  and  to  the  best  of  his 
skill  and  judgment,  but  "  he  is  bound  to  conduct  himself  in 
a  skillful  manner,  and  do  all  that  any  skillful  person  could 
[237]  reasonably  be  required  to  do  "  (l).  And  it  seems 
clear  that  he  cannot  excuse  himself,  as  in  the  case  of  a  per- 
son failing  to  perform  a  non-statutory  duty  by  saying  that 
he  employed  a  competent  contractor  {m). 

(fc)  Sutton   V.   Clarke,   6  Taunt.  29;  Bayley,  J. ;  [Shearman  &  Redf.,  §  364  a, 

Mersey  Docks  v.  Gibbs,  L.  R.  1  H.  L.  93  note;  Wharton,  §  816.] 

at  p.  113;  35  L,  J.  Ex.  225.— [See  Nor-  (m)  Gray  r.  Pullen,  5  B.&  S.970;  34L. 

walk  Gaslight  Co.  v.  Borough  of  Nor-  J.  Q.  B.  265 ;  Hole  v.  Sittlngbourne  Ry., 

walk,  G3  Conn.  495 ;  28  Atl.  Rep.  32].  6  H.  &  N.  488;  [Shearman  &  Redf.,  §§  15, 

(0  Jones  V.  Bird,  5  B.  &  A.  837,  per  84 ;  Wharton,  §  441 ;  2  Thompson  on  Neg. 

904 ;  see  infra] . 

(m)  In  Circleville  v.  Neuding,  (41  Ohio  St.  265),  the  Court  said:  "It 
is  contended  on  behalf  of  the  city  that  it  is  not  liable  for  the  loss  of  the 
horse,  because  the  cistern  was  in  process  of  construction  by  an  inde- 
pendent contractor  when  the  injury  occurred.  The  relation  between  the 
city  and  Brandt  was  clearly  that  of  employer  and  independent  contractor, 
and  the  rule  is  generally  that  for  injuries  occurring  in  the  progress  of 
work  carried  on  by  parties  in  that  relation  the  contractor  alone  is  liable. 
But  this  liability  is  limited  to  those  injuries  which  are  collateral  to  the 
work  to  be  performed  and  which  arise  from  negligence  or  wrongful  act 
of  the  contractor  or  his  agents  or  servants.  Where,  however,  the  work 
to  be  performed  is  necessarily  dangerous,  or  the  obligation  rests  upon 
the  employer  to  keep  the  subject  of  the  work  in  a  safe  condition,  the  rule 
has  no  application.  This  distinction  has  been  taken  in  this  State  in 
a  number  of  cases.—  Carman  v.  Railroad  Co.,  4  Ohio  St.  R.  399;  Hughes 
V.  Railway  Co.,  39  Ohio  St,  461;  Tiffin  v.  McCormack,  34  Ohio  St.  638, 
and  elsewhere  in  McCafferty  v.  The  Railroad,  61  N.  Y.  178;  Prentiss  v. 
Boston,  112  Mass.  43;  Baltimore  v.  O'Donnell,  53  Md.  110;  Logansport 
V.  Ijlck,  70  Ind.  65;  Crawford  v.  Smith,  70Ind.  308;  Robbins  v.  Chicago, 
4  Wall.  457;  City  of  Birmingham  v.  McCray  (Alabama),  4  So.  Rep. 
C30;  Village  of  Jefferson  v.  Chapman,  27  111.  App.  43;  affirmed,  20  N.  E. 
Itep.  33;  127  111.  438;  Betts  v.  Gloversville,  8N.  Y.  S.  Rep.  795;  Turner 
V.  Newburgh.  109  N.  Y.  301;  16  N.  E.  Rep.  344;  City  of  Omahav.  Jenser,, 
36  Neb.  68;  62  N.  W.  Rep.  833.  See  Beach  Pub.  Corp.,  §  1541. 
"  In  this  case  the  cistern  contracted  for  was  built  in  a  street,  was  to  be 


COUl*OKATION8   PERFOUMINO   8TATUTORY    DUTIES.       293 

Where  there  is  u  duty  imposed  by  Btntuto,  it  does  not 
follow  that  the  mere  fact  that  it  is  not  performed  is  negli- 
<»cnco.  If  the  omission  arises  without  any  default  on  the 
part  of  the  corporation,  and  the  statute  does  not  give  any 
compensation  for  injuries  arising  from  such  omission,  no 
action  will  lie  (ii). 

It  does  not,  however,  follow  in  all  cases  that  where  a 
statute  gives  a  penalty  a  right  of  action  is  involved  (a7i(e,  p. 
289).  Where  a  j)ublic  statute  orders  the  performance  of  a 
duty  towards  a  class  of  persons  under  a  penalty,  and  an 
individual  is  injured  by  the  neglect  of  the  corporation,  the 
mere  fact  of  the  penalty  does  not  prevent  the  action  for  the 
])rivate  damage,  but  the  whole  scope  of  the  Act  must  be 
looked  at,  to  see  whether  it  was  intended  that  the  penalty 
should  be  the  only  punishment  for  the  breach  of  duty  (o). 

It  was  for  a  long  time  doubted  whether  corporations 
[238]  could  be  guilty  of  a  wrong,  although  they  might 
commit  a  breach  of  contract;  but  it  is  now  clearly  settled 
that  a  corporation  may  be  guilty  of  a  trespass  or  a  tort 
(;;);audit  has  been  decided  that  where,  either  by  pre- 

\.n)  Hammond  r.  St.  Pancras,  L.  R.  9  cashiro  &  Yorkshire  By.  Co.,  L.  U.  8  Ex. 

C.  P.  816;  43  L.  J.  C.  r.  157;  [Whart.  §  283;  42  L.  J.  Ex.  182;   [WliarC,  §  443;    1 

599].  Thompfion  on  Neg.,  p.  M7,  note]. 

(o)  It  U  submitted  that  thla  is  all  that  {p)  Per   Lord    Ellonborough,    0.   J., 

can  bo  collected  from  a  comparison  of  Yarborough  r.  Rank  of  England,  Iti  East, 

the  following  cases:   Couch  v.    Steel,  3  7;  [Angel  &  Ames  on  Corporations,  10th 

K.   ft   B.   40-2;  Atkinson     r.    NewcasUo  Ed.,    §§   3S.V389;   Shearman  &  Ucdf.,  §§ 

Waterworks  Co.  (C.  A.),  L.  li.  2  Ex.  Dlv.  119,  135,  n;  2  Thompson  on  Neg.,  p.  742]. 
441;  46  L.  J.  Ex.  775;  Blamlres  v.  Lan- 

eightecn  feet  wide  aud  twenty  feet  deep.  Such  an  excavation  in  a  street, 
ODless  protected  to  guard  persons  aud  animals  using  the  street  from  fall- 
ing Into  It,  was  necessarily  dangerous.  The  city  was  under  the  statutory 
obligation  at  the  time  of  the  accident  to  Iceep  its  street  open,  in  repair  and 
lr«e  from  nuisance,  and  it  could  not  cast  this  duty  upon  a  contractor,  so 
M  to  relieve  itself  from  liability  to  one  who  should  receive  an  injury.  It 
U  primarily  liable  for  an  injury  resulting  from  such  dangerous  place  in  a 
street.  If  it  has  required  the  contractor  to  as.sume  the  risk  of  such 
damage,  It  may  have  a  remedy  against  him.  But  the  public  in  the  use  of 
the  streets  may  rely  upon  the  legal  obligation  of  the  city  to  keep  them 
free  from  dangerous   places,  or  if  such  places  become  necessary  to  be 


294  MORE  THAN  ORDINARY  CARE. 

scrlpLion  or  grant,  or  statute,  a  duty  is  imposed  upon  a 
corporation,  and  a  matter  of  general  and  public  concern  is 
involved,  the  public  may  enforce  those  duties  by  indictment, 
and  individuals  peculiarly  injured  by  action  {q). 

Where  an  imperative  duty  is  imposed  upon  a  corporation, 
and  there  is  a  breach  of  that  duty,  the  public  have  remedies 
by  indictment,  mandamus,  i»njunct-ion,  or  action  for  the 
wrong  done,  without  any  allegation  of  neg.ligence  being 
necessary  (r),  but  it  is  obvious  that  these  matters  are 
[239]  beyond  the  scope  of  the  present  work.  But  be- 
yond these  remedies,  where  there  is  an  imperative  duty 
imposed  upon  a  corporation,  and  there  is  negligence  in  the 
mode  of  performing  their  duty,  or  negligence  in  omitting 
to  perform  it  (s),  then  an  action  for  negligence  can  be 
maintained  against  them  (s),  and  more  than  ordinary  care 
will  be  required  of  them  {t). 

Where  the  duty  is  discretionary  merely,  the  corporation, 
as  we  have  seen,  ante.  Chapter  II.  s.  5,  are  not  liable  for 
omitting  to  do  what  they  are  not  bound  to  do ;  but  if  they 
undertake  to  perform  a  duty,  or  to  do  a  work  which 
they  are  not  bound  to  do,  they  must  exercise  ordinary  care. 

Where  (as  is  sometimes  the  case)  a  corporation  are 
charged  with  the  duty  of  keeping  its  streets  in  repair,  and 
of  exercising   a  general  supervision  over  them,  they  are 

(7)  Major,  &c.,   of    Lyme    Regis   v.  ful   exercise   of    statutory    powers,  no 

Ilenly,  2  Hlng.  N.  C.  241;  [Shearmau  &  negligence);  IJrougliton  v.  Mid.  U.  W. 

Redf.,  §§  130, 145].  of  Ireland  Co.,  7  Ir.  K.  C.  L.  169  (water 

(r)  See    Hammond    v.  Vestry   of  St.  turned  into  sewer  stopped  up;  statu- 

Pancras,    infra;    [Shearman    &   Redf.,  tory  powers,  no  negligence) ;  Jolllfc  v. 

§§  131),  145J.  Wallasey  Local  Board,  L.  R.  9  C.  P.  62 

(«)  If  there  is  no  neglic;ence  shown  (duly  to  put  down  anchors,  but  buoys 

In  the  omission  the  corporation  are  not  also  ought  to  have  been  put  to  show  tho 

liable.    Hammond  v.  St.  Pancras,  43  L.  spot);  Field  v.  L.   and  N.  W.  Ry.  Co. 

J.  C.  P.  157;  L.  R.  9  C.  P.  316  (overllow  of  (flow  of  water  in  land  impeded;  [Shear- 

a  sewer);   Dunn  v.   Birmingham  Canal  man  &  Redf.,  §  123]. 
Nav.,  L.   R.  8  (2.   B.  42;    42  L.  J.  Q.  B.  (t)  Campbell  on  Negligence,  p.  18.- 

34    (canal   overllowed  into  mine,   law-  [McAndrewst;.  CoUered,  42N.  J.  L.  189]. 

made  in  the  course  of  au  improvement,  or  worli  necessary  or  proper  for 
the  city  to  do.  that  it  shall  so  guard  them  that  no  ordinary  injury  sliall 
result  in  the  ordinary  use  of  the  street." 


CORPOIIATIONS    PERFORMING    STATUTORY    DUTIES.       205 

l)c)inul   to  keep  them  fro(»  from  all  ((hstnictioii.s  ami  ih-fects 
against  which  cUio  care  can  guard  (a). 

Where  the  cor[><)rati()ii  re(|uire  private  (h'ains  to  he  run 
into  the  main  sewer,  they  are  bound  to  take  care  to  keep 
such  sewer  open  {x)  \  but  where  tlie  private  owners  are  not 
so  required,  and  have  not  in  fact  so  used  the  sewer,  and 
have  taken  no  means  to  prevent  an  overilow,  the  corpora- 
tion are  not  liable  for  damage  from  an  overflow  of  their 
sewer  ( ?/)• 

Where  a  railway  company  are  bound  by  statute  to  put 
u|)  a  fence  or  gate  upon  a  level  crossing,  it  is  negligence  to 
[2-10]  omit  to  do  so,  and  the  company  are  liable  for  injury 
caused  by  such  omission  {z). 

Where  a  corporation  are  bound  by  statute  to  fence  a 
footpath,  they  are  liable  for  injury  arising  from  their 
ouiissioii  to  do  so  (a). 

It  is  not  proposed  to  discuss  all  the  cases  in  which  it  has 
been  argued  that  the  statute  under  which  the  corporation 
was  acting,  did  not  absolutely  and  imperatively  demand 
the  performance  of  the  duty,  l)ut  left  it  to  their  discretion. 
These  cases  turn  upon  the  construction  to  be  given  to  the 
particular  section  of  the  Act,  or  clause  of  the  charter,  in 
each  case  (b). 


(H)  See  Highways,  ante,  Ch.  II.  8.  4, 
WendoM  v.  Troy,  39  Ilarb.  32'.»;  i  Keyes, 
«l;  [Shearman  &  liedf.,  §§  149  and 
M;  2  Thompson,  753;  City  of  Olney  v. 
Rllcy.  Sit  ni.  Ai)p.4iil ;  McCormick  i-.  City 
Of  Amsterdam,  G3  Uun,  C3i;  18  X.  Y.  S. 
Eep.  272;  Hazard  t'.  City  of  Council 
Bluffs,  87  la.  .11 ;  53  N.  W.  Rep.  1083 ;  Sey- 
mour r.  VlllaRo  of  Salamanca,  137  N.  Y. 
864;  33  N.  E.  Uep.  3ot;  Fuller  f.  City  of 
Jackson,  92  Mich.  197;  52  N.  W.  Kcp. 
1075,  overruling  Clark  r.  Village  of  North 
Mnakegon,  88  Mich.  308;  50  N.  W.  Uep. 
»4;  Uanley  r.  City  of  Huntington,  37 
W.  Va.  578;  16  S.  E.  Uep.  807  ;  I'ittenger 
V.  Town  of  Hamilton,  85  Wis.  556 ;  55  N. 
W.  Rep.  423]. 

(a:)  Child  v.  Boston,  4  Allen,  41; 
Shearman,  151 ;  [Whart.,  §  2G2J. 


(I/)  Barry  v.  Lowell,  8  Allen,  127. 

(;)  Williams  v.  G.  W.  Uy.  Co.,  L.  U. 
9  Ex.  157;  43  L.  J.  Kx.  105  (child  found 
with  foot  cut  off;  no  fence).  See  this 
matter  more  fully  treated,  post,  Ch.  V., 
Contributory  Negligence. 

(a)  Ohrby  v.  Uyde  Commr8.,33  L.J. 
Q.  U.  206.  [See  as  to  private  roads  Uall- 
road  Co.  r.  Cunuln(,'ton,  39  Ohio  St.  327; 
Bond  V.  Evansvillf,  etc.,  R.  Co.  KX)  Ind. 
301 ;  Evansvlllc,  etc.,  Co.  v.  Mosier,  1  X. 
E.  Uep.  197, a  railroad  corporation  Is  not 
required  to  show  the  Hainc  degree  of 
caro  In  fencing  a.s  to  a  private  person 
who  la  crossing  over  its  track,  that  It 
owes  to  the  public,  Ix>ul8vllle,  etc.,  R. 
Co.  V.  Goodbar,  S.  C.  Ind.,  20  Uep.  587]. 

{h)  Sec  the  following  cases.— Ohrby 
V.  Ryde  Coramrs.,  33  L.  J.  y.  U.  296;  Wil- 


296  MORE  THAN  ORDINARY  CARE. 

It  should  be  observed  that  the  duty  may  be  imperative  as 
regards  the  public,  and  discretionary  as  regards  individuals; 
and  that  words,  in  terms  bestowing  a  power  only,  are,  when 
the  public  interests  require  it,  construed  to  impose  an  im- 
perative duty. 

In  the  case  of  Julius  v.  Bishop  of  Oxford  (c),  the  Lord 
Chancellor  said:  — 

"  The  words  '  it  shall  be  lawful '  are  not  equivocal.  They 
are  plain  and  unambiguous.  They  are  words  merely  mak- 
ing that  legal  and  possible  which  there  would  otherwise 
be  no  right  or  authority  to  do.  They  confer  a  faculty  or 
power,  and  they  do  not  of  themselves  do  more  than  confer 
a  faculty  or  power.  But  there  may  be  something  in  the 
nature  of  the  thing  empowered  to  be  done,  something 
in  the  object  for  which  it  is  to  be  done,  something  in  the 
[241]  title  of  the  person  or  persons  for  whose  benefit  the 
power  is  to  be  exercised,  which  may  couple  the  power  with 
a  duty,  and  make  it  the  duty  of  the  person  in  whom  the 
power  is  reposed  to  exercise  that  power  when  called  upon  to 
do  so.  "Whether  the  power  is  one  coupled  with  a  duty  such 
as  I  have  described  is  a  question  which,  according  to  our 
system  of  law,  speaking  generally,  it  falls  to  the  Court  of 
Queen's  Bench  to  decide,  on  an  application  for  a  manda- 
mus. And  the  words  *  it  shall  be  lawful '  being  accord- 
ing to  their  natural  meaning  permissive  or  enabling  words 
only,  it  lies  upon  those,  as  it  seems  to  me,  who  contend 
that  an  obligation  exists  to  exercise  this  power,  to  show  in 
the  circumstances  of  the  case  something  which,  according 
to  the  principles  I  have  mentioned,  creates  this  obligation." 
He  c<)ntiuues :  — 

"  Where  a  power  is  deposited  with  a  public  officer  for 
the  purpose  of  being  used  for  the  benefit  of  persons  who 

Bon  r.  Halifax,  3  L,  J.  Ex.  44 ;  L.  R.  3  Ex.      [Dillon  on  Man.  Corp.,  §  949;  Shearman 
11;   Hammond   v.    St.   Pancras,  supra;      &  Redf.,  §  129] . 

Dormont    r.   Furness   Ry.    Co.,   supra;  (c)  Jnllus  «.  Bishop  of  Oxford, 6  App. 

Cas.  214,  223. 


CORPORATIONS    PERFOR&1INO    STATUTORY    DUTIES.       297 

are  specifically  pointed  out,  and  with  regard  to  whom  a 
definition  is  supplied  by  the  Legislature  of  the  conditions 
upon  wiiich  they  are  entitled  to  call  for  its  exercise,  that 
power  ought  to  bo  exercised,  and  the  Court  will  require  it 
to  bo  exercised." 

Lord  Selborne  said:  — 

"  The  language  (certainly  found  in  authorities  entitled 
to  a  very  great  respect),  which  speaks  of  the  words  *  it  shall 
be  lawful,'  and  the  like,  when  used  in  public  statutes,  as 
aQ)l)iguous,  and  susceptible  (according  to  certain  rules  of 
construction)  of  a  discretionary  or  obligatory  sense,  is 
in  my  opinion  inaccurate.  I  agree  with  my  noble  and 
learned  friends  who  have  preceded  me,  that  the  meaning 
of  such  words  is  the  same,  whether  there  is  or  is  not  a  duty 
or  obligation  to  use  the  power  which  they  confer. 

"They  are  potential,  and  never  (in  themselves)  signifi- 
cant of  any  obligation.  The  question  whether  a  Judge  or 
a  public  ofiicer  to  whom  a  power  is  given  by  such  words, 
is  bound  to  use  it  upon  any  particular  occasion,  or  in  any 
[242]  particular  manner,  n)ust  be  solved  aliunde,  and,  in 
general,  it  is  to  be  solved  from  the  context,  from  the  par- 
ticular provisions,  or  from  the  general  scope  and  objects, 
of  the  enactment  conferring  the  power." 

Lord  Blackburn  said:  — 

'•  I  do  not  think  the  words  '  it  shall  be  lawful  '  are  in  them- 
selves ambiguous  at  all.  They  are  apt  words  to  express  that 
a  power  is  given;  and  as,  prima  facie,  the  donee  of  a  power 
may  either  exercise  it  or  leave  it  unused,  it  is  not  inaccurate 
to  say  that  prima  facie,  they  are  equivalent  to  saying  that 
the  donee  may  do  it ;  but  if  the  object  for  which  the  power 
is  conferred  is  for  the  purpose  of  enforcing  a  right,  there 
may  be  a  duty  cast  on  the  donee  of  the  power,  to  exercise 
it  for  the  benefit  of  those  who  have  that  right,  when 
required  on  their  behalf." 

The  liability  of  the  corporation  must,  as  we  have  seen, 
be  determined  upon  a  true  interpretation  of  the  statute  or 


298  MORE    THAN    OliDINARY    CARE. 

charter  under  which  they  are  created.  If  there  is  a  duty 
not  only  to  make  certain  works,  but  also  to  take  proper 
care  and  use  reasonable  skill  about  the  works  so  as  to  make 
them  such  as  the  statute  or  charter  authorizes,  persons  in- 
jured by  the  negligence  of  the  corporation  to  fulfill  sucii 
duty  may  maintain  an  action  against  the  corporation  for 
negligence  (d). 

The  true  interpretation  of  such  statutes  is  that  a  duty  is 
cast  upon  the  incorporated  body  not  only  to  make  the  works 
authorized,  but  also  to  take  proper  care  and  to  use  reason- 
able skill  that  the  works  are  such  as  the  statute  authorizes, 
or  to  take  reasonable  care  that  they  are  in  a  fit  state  for  the 
use  of  the  public  who  are  to  use  them  (e),  and  from  time 
to  time  to  do  what  is  necessary  to  prevent  the  recurrence 
of  injury  (/). 

[243]  The  proper  rule  of  construction  of  such  statutes 
is  that,  in  the  absence  of  something  to  show  a  contrary 
intention,  the  Legislature  intends  that  the  body,  the 
creature  of  the  statute,  shall  have  the  same  duties,  and  that 
its  funds  shall  be  rendered  subject  to  the  same  liabilities  as 
the  general  law  would  impose  on  a  private  person  doing 
the  same  thing  {g).  A  person  sustaining  injury  through 
work  authorized  by  statute  is  in  general  only  able  to  recover 
if  he  could  have  recovered  for  the  injury  done  apart  from 
the  statute  (A). 

Care  should  be  taken  to  ascertain  accurately  in  the  first 
place  what  the  duties  of  the  corporation  are  ;  for  they  are 
(july  liable  for  a  neglect  of  duty,  not  for  an  injury  arising 
from  something  done  or  omitted  to  be  done  in  respect  of 
which  they  have  no  duty  (^). 

(d)  Mersey  Docks  v.  Gibbs,  L.  R.  1  H.  Truman  v.  L.  B.  &  S.  O.  Ry.  Co.,  25  Ch. 
of  L.,  p.   118,  ;)cr  Blackburn,    J.,  citing      D.  422. 

Sonihumpton  Bridge  Co.  v.  Southamp-  {g)  Mersey  Docks  v.  Gihha,  supra, &t. 

ton  Board,  8  Kll.  &  BI.  801,  812.  p.  223. 

(e)  Mersey  Docks  v.  Glbbs,  supra,  at  (ft)  New  River  Co.  v.  Johnson,  2  E.  & 
P-  "8.  E.  435. 

{/)  Geddls    V.    Proprietors  of   Bann  (/)  Cracknell  r.  Thetford  (Mayor  of)> 

UcBcrvoIr,  L.  U.  3  Ai)p.  Cases,  438;  see      L.  R.  4  C.  P.  620;  38  L.  J.  C.  P.  353  (Com- 


COHrOUATIONS    PERFOKMING    STATUT()UV    DITIKS, 


2W 


If  !i  corporation  take  toll  (Jc)  from  the  publir,  and  invite 
tlioin,  expressly  or  impliedly,  upon  their  premises,  they  are 
liable,  like  individuals,  for  injury  arising  from  the  defec- 
tive state  of  the  j)remises  (/),  and  therefore,  as  we  have 
seen  (w),  they  also  are  bound  to  use  more  than  ordinary 
care.  Upon  this  priaeiple  railway  companies  who  invite 
persons  expressly  or  impliedly  upon  their  premises  are 
bound  to  take  more  than  ordinary  care  (n). 

Upon  the  other  hand,  corporations  are  not  liable  for  any 
injury  which  is  the  inev'itahh:  consequence  of  somethini; 
[244]  done  in  the  course  of  their  duty,  but  only  for  sui'h 
injury  as  would  not  have  arisen  but  for  their  own  negli- 
geuce  (o). 

Where  a  corporation  have  power  to  do  some  work  for 
their  own  or  the  public  benefit,  it  is  their  duty  to  see  that 
it  is  carefully  done,  and,  thouuh  under  their  powers  they 
have  the  right  to  do  an  act  which  is  a  nuisance,  they  arc 
bouml  to  do  all  they  can  to  obviate  the  mischief  (/;). 

It  has  been  held,  after  many  contlicling  decisions,  and  is 
now  settled  law  that  corporations  are  liable  for  negligence, 
whether  they  derive  any  ultimate  pecuniary  benefit  or  not 
from  the  performance  of  the  duty  imposed  upon  them  {f/). 


miBsiODcr'sdaty  to  maintain  navigation, 
no  duty  to  clean  river  so  as  to  prevent 
floods) ;  and  eoc  HodRSon  r.  York 
(Mayor  of),  28  L.  T.  N.  S.  8:«5;  Collins 
r.  Mid.  Level  Commrs.,  L.  U.  4  C.  P. 
279;  38  L.  J.  C.  P.  236;  Gibson  v.  Pres- 
ton (Mayor  of),  L.  K.  5  Q.  I?.  222;  39  L. 
J.  Q.  IJ.  131 ;  nartnell  v.  Ryde  Commls- 
slonern,  4  15.  &  S.  3(>1 ;  33  L.  J.  Q.  B.  39; 
Whiter.  Uindlcy  Ix)cal  Board,  L  li.  10 
VI.  B.  219;  41  L.  J.  C^  B.  Ill;  Dorinontf. 
Forness  Uy.  Co.,  L.  R.  W.  N.  April  2l8t, 
l«3;p  ?2;11Q.  B.  1).  4% ;  Blackmore  r. 
VcHtryof  Mile  End  Old  Town,  .')I  L.  J. 
Q.  n.  49«!.-[Collin8  v.  City  of  Waltham, 
151  Mass.  106;  24  N.  E.  Rep,  327.] 

(t)  It  is  immaterial,  as  will  be  seen 
»n/r<i,  whether  they  make  on  the  whole 
■  profit  from  the  toll, see  nnte.Ch.ll.  s.  5. 

(0  Winch  f.  Conservators  of  Thames, 
L.  R.  9  C.  P.  378 ;  43  L.  J.  C.  P  1C7.  ( Exch. 


Ch.)  (towlngpath),lf  they  were  iKnornnt 
of  the  defect,  or  gave  notice  to  those 
who  i>ai<l  toll  of  the  defect  they  would 
not,  it  seems,  be  liable.— [City  Council 
of  Augusta  V.  Hudson,  88  Ga.  599;  15  S. 
E.  Rep.  678.] 

(m)  Ante,  p.  276. 

(;i)  See  8.  8,  Carriers. 

(o)  Whitehousc  v.  Fellowcs,  IOC.  B. 
N.  S.  7G.'5;  30  L.  J.  C.  I'.  305;  Ruck  v. 
Williams,  3  II.  &  S.  308;  Crackncll  r. 
Corp.  of  Thctford.  L.  R.  4  V.  P.  lOT;  3S 
L.  J.  C.  P.  353;  Di.von  r.  Metropcilitan 
Board  of  Works,  7  g.  B.  1).  418. 

(p)  Rex.  f.  Korrison,  3  M.  &  S.  526; 
Oliver  f.  N.  E.  Ry.  Co..  L.  R. ".»  Q.  B.  409; 
43  L.  J.  Q.  B.  198. 

(<7)  Mersey  Docks  r.  Glbbs,  L.  R.  1 
H.  L.  93;  35  L.  J.  Ex.  225  ;  Coc  f.  Wise, 
L.  R.  1  Q.  B.  711  ;  37  L.  J.  Q.  B.  262. 


300  MORE  THAN  ORDINARY  CARE. 

If  a  corporation  have  notice  or  the  means  of  knowing  (r) 
that  the  works  or  premises  over  which  they  have  control 
are  in  a  defective  state,  and  they  negligently  disregard  the 
notice  or  negligently  omit  to  avail  themselves  of  their 
means  of  knowledge,  they  are  liable  in  an  action  of  negli- 
gence for  injury  caused  by  such  disregard  or  omission  (s). 

Where  a  corporation  have  a  positive  duty  to  perform  it 
is  no  answer  to  an  allegation  of  negligence  upon  their  part 
that  their  officers,  servants  or  agents  were  ordered  to  do 
it  (/),  nor  that  they  have  contracted  with  a  competent 
person  for  the  performance  of  such  duty  (w),  but  if  they 
go  farther  and  show  that  the  work  was  done  in  a  coni- 
[245]  petent  manner,  and  that  the  injury  was  caused  by 
an  accident  or  vis  major  they  are  excused  (x). 

In  order  to  render  a  corporation  liable  for  negligence 
the  persons  doing  the  negligent  act  must  be  appointed  and 
removable  by  the  corporation  (y)  and  subject  to  the  con- 
trol of  the  corporation  (2). 

But  a  corporation  may  render  themselves  liable  for  the 
acts  of  persons  to  whom  they  have  given  authority  to  do 
the  particular  act  in  respect  of  which  negligence  is  alleged, 
or  if  they  subsequently  adopt  such  act  {a). 

(r)  Penhallowv.  Mersey  Docks,JK/ra;  washed  away  by  flood);  see  Shearman 

stiles  r.  Cardiff  Nav.  Co.,  33  L.  J.  Q.  B.  s.  373  et  seq.,  and  see  infra. 
310  (sci>«<er  RB  to  vicious  dog).    Mersey  (a;)  G rote  v.   Chester   and    Holyhead 

Docks  V.  Gihbp, supra.  Ry.,  supra;  G.  W.  Ry.  of  Canada  u.  Faw- 

(«)  Penhallowr.  Mersey  Docks,  30  L.  cett,  1  Moo.  P.  C.    N.  S.   101.  —  [Haney 

J.  Ex.  329.  Kx.  Ch.  L.  R.  1  II.  L.  93;  35  v.  City  of  Kansas,  94   Mo.  334;  7  S.  W 

I...    J.  Ex.   22.5;    Parnaby   r.  Lancaster  Rep.  417;  Harrlgau  v.  City  of  Wilmlng- 

CanalCo.,11  Ad.&E.  223;  Mersey  Docks  ton,  8  Del.  140;   12  Atl.  Rep.  779;  Fair- 

V.  Glbbs,  supra;  and  see  Hammond  v.  lawn  Coal  Co.  v.  City  of   Scranton,  148 

St.  Pancras  Vestry,  supra;— [Whitfield  Pa.  St.  231;  23  Atl.  Rep.  1069,  following 

V.  Town  of  Carrollton,  50  Mo.  App.  98].—  Fair  v.  City  of  Philadelphia,  88  Pa .  St. 

Bee  alHO  ShearmaD,  s.  407;  [see  posf,  p.  309,  and  Collins  v.  City  of  Philadelphia, 

257,  notice].  93  pa.  st.   272;   Kannenberg  v.  City  of 

(0  Scott   V.  Manchester,  2  H.  &  N.  Alpena,  96  Mich.  53;  55  N.  W.  Rep.  614; 

2*^-  Taylor  v.  Yonkers,  105  N.  Y.  202. 

(u)  Grote  r.  Chester  &  Holyhead  Ry.  (y)  Shinottl  v.  Bumstead,  6  T.  R.  646. 

Co.,  2  Kx.  251.    As  explained  In  Francis  («)  Scott  v.  Manchester,  s»tpra.—[Wal- 

r.  Cockercll,  L.  R.  5  Q.  B.  501 ;  39  L.  J.  Q.  dron  v.  Haverhill,  143  Mass.  582;  Walsh 

n.  291.    See  Philadelphia  Uy.  Co.  v.  An-  v.  New  York,  41  Hun,  299.] 
dcrson  [94  Pa.  St.  351] ;  39  Am.  Rep.  787  (a)  Smith  v.  Birmingham  Gas  Co.,  1. 

(defective    drainage    of    embankment  A.  &  E.  526;  [3  Thomp.  on  Neg.,  §  915; 


COUrOKATIONS   rEUFORMlNQ   8TATUT011Y    DUTIES.       301 

Sometimes  a  corponition  are  bound  by  statute  to  employ 
u  purtic'ulur  person  to  do  particular  acts,  aud  such  jjcrson, 
altlu)ugli  in  some  sense  employed  by  the  corporation,  is  in 
fact  intk'pendont  of  their  control,  and  acting  under  other 
authority.  If  that  be  so,  of  course  the  corporation  are  not 
lial)le;  but  as  in  the  ordinary  case  of  master  and  servant 
the  dilFiculty  is  one  of  fact,  whether  the  person  so  acting  is 
the  servant  of  the  corporation  or  not  (6). 

Although  in  the  execution  of  a  statutory  duty  corpora- 
tions cannot  shelter  themselves  under  the  person  whom  they 
have  employed  to  perform  that  duty,  yet  they  are  not 
liable,  as  it  would  seem,  for  a  mere  error  of  judgment  by 
such  person,  if  they  have  taken  care  to  select  a  person  of 
skill.  Thus  if  a  corporation  assent  to  a  particular  mode 
being  adopted  in  executing  a  work,  whether  such  mode  is 
suggested  by  means  of  i)lans  or  otherwise,  they  are  not 
liable,  if  thoy  have  taken  duo  care  to  obtain  skillful  advice 
on  the  matter  (c).     The  truth  is  in  such  cases  there  ia  no 


Shearman  &  Ucdf.,  §  137.]  —  [Wilson  v.  Anderson,  91  Ind.  591;  Rice  r.  Evans- 
City  of  Troy,  135  X.  Y.  'M;  32  N.  K.  Uep.  vUle,  lOS  Ind.  7;  53  Am.  Uep.  22;  Waller 
M;  ftrtlrniing  U  N.  Y.  S.  Uep.  721 ;  Wey-  v.  Dubuque,  m  la.  541 ;  Young  c.  City  of 
uioQlh  r.  City  of  New  Orleans,  40  Iji.  Kansas,  27  Mo.  Ai)p.  101;  Harron  r.  City 
Ann.  Mi  ;  4  So.  Uep.  21S ;  Graves  v.  Uoch-  of  Detroit.  94  Mich.  601 ;  54  N.  W.  Uep. 
Mlnr,  39  Uun,  5;  Anderson  v.  City  of  273.]  —  In  City  of  North  Vernon  v. 
Wilmington,  3  Del.  51(i;  19  Atl.  Rep.  Vogeler,  (Ind.),  25  Am.  Law  Rex.  101, 
50Uj.  It  was  held  that  a  municipal  corpora 
(6)  Shearman,  s.  138.  —  [Mulcalrs  r.  tlon  Is  liable  If  tlie  luck  of  care  ami 
Jancsvlllc,  G7  Wis.  24.]  .skill  m  devlHing  the  plan  of  a  public 
(c).  Sutton  r.  Clarke,  6  Taunt.  29;  [Ur-  ImproveineiU  Is  so  great  as  to  CODSti- 
qabart  t>.  City  of  Ogdensburg,  91  N.  Y.  tute  negligencej. 
67;  43  Am.  Rep.  9;  Rozelle  v.  City  of 


The  subject  of  the  liability  of  municipal  corporations  with  respect  to 
it8  hijjhways  may  be  considered  here. 

The  Liability  of  Municipal  Corporations  with  Respect  to  High- 
ways—Change  of  Grade. —  While  for  direct  damages  a  inuuicipal  cor- 
poration Is  liable  (Stearns  v.  City  of  Richmond,  88  Va.  992;  14  S.  E. 
K«p.  847;  City  of  Texariiana  v.  Talbot,  7  Tex.  Civ.  App.  202;  2<;  S.  W. 
Rep.  451;  Melnzer  v.  City  of  Racine,  70  Wis.  5tJl;  30  N.  W.  Rep.  2G0; 
HoUey  v.  Town,  etc.,  Farrington,  63  Conn.  426;  28  Atl.  Rep.  613;  Hob- 
son  V.  City  of  Philadelphia,  150  Pa.  St.  595;  24  Atl.  Rep.  1048;  31  W.  N. 
C.  9;  City  of  Joliet  v.  Blower,  49  111.  App.  464;   Contra,  Smith  v.  Villugo 


3(Jl>  MORE   THAN   ORDINARY   CARE. 

neirli^ence  in  fact  in  any  one,  none  in  the  selection  of  the 
[24G]     mode,  and  none  in  the  execution.     If  there  is  no 

of  White  Plains,  67  Hun,  81;  22  N.  Y.  S.  Rep.  450;  Baker  w.  Town  of 
Shoales,  G  Ind.  App.  319;  33  N.  E.  Rep.  664),  it  is  not  liable  for  conse- 
quential damages  caused  by  grading  or  changing  the  grade  of  its  streets 
where  reasonable  care  is  exercised  in  performing  the  work.—  2  Dillon 
Municipal  Corp.,  3d  ed.,  §  990,  et  seq.;  Beach  Pub.  Corp.  §  662,  citing 
Transportation  Co.  v.  Chicago,  99  U.  S.  635,  and  other  cases.  Cumber- 
land V.  Willison,  50  Md.  138.  See  Northern  Transp.  C  v.  Chicago,  99  U. 
S.  635. 

In  one  State,  Ohio,  municipal  corporations  are  held  liable  for  conse- 
quential damages  whether  the  work  is  performed  negligently  or  not.— 
Akron  V.  Chamberlain  Co.,  34  Ohio  St.  328;  32  Am.  Rep,  367.  See 
Cohen  v.  Cleveland,  43  Ohio  St.  190;  Bartley  v.  City  of  Cincinnati,  8 
Ohio  Cir.  Ct.  Rep.  226.  So  in  Indiana. —  City  of  Lafayette  v.  Nagle,  113 
Ind.  425;   15  N.  E.  Rep.  1, 

In  any  case  a  liability  arises  where  the  work  is  negligently  done  and 
damages  accrue  therefrom. —  Keating  v.  Cincinnati,  38  Ohio  St.  141;  48 
Am.  Rep.  421 ;  Werth  v.  City  of  Springfield,  78  Mo.  107;  Hendershott  v. 
City  of  Ottumwa,  46  la,  658;  26  Am.  Rep.  182;  Mayo  v.  Springfield,  136 
Mass.  10;  Broadwell  v.  City  of  Kansas,  75  Mo.  213;  42  Am.  Rep.  406; 
Elgin  V.  Kimball,  90  111,  356;  City  of  New  Westminster  v.  Brighouse,  20 
Can.  S.  C.  Rep.  520;  Parke  v.  City  of  Seattle,  5  Wash.  St.  1 ;  31  Pac,  Rep. 
310;  Nichols  v.  City  of  Duluth,  40  Minn.  389;  42  N.  W.  Rep.  84,  follow- 
ing Dyer  v.  City  of  St.  Paul,  27  Mich.  457;  8  N.  W.  Rep.  272. 

Although  a  municipality  is  cot  liable  for  errors  of  judgment  in  devis- 
ing a  plan  of  improvement  of  a  street  it  is  liable  if  the  lack  of  care  and 
skill  In  devising  It  is  so  great  as  to  constitute  negligence. —  City  of 
North  Vernon  v.  Voegler,  103  Ind.  314;  25  Am,  Law  Reg.  101, 

A  municipal  corporation  is  not  liable  for  allowing  ordinary  surface- 
water  to  escape  through  the  highway  on  to  adjacent  laud  by  changing 
the  grade  of  its  streets.—  Wakefield  v.  Newell,  12  R.  I.  75;  34  Am.  Rep. 
598;  Alden  v.  Minneapolis,  24  Minn.  254;  Lynch  v.  New  York,  76  N.  Y. 
CO;  Mogarity  v.  Wilmington,  5  Del.  530;  Stewart  v.  Clinton,  79  Mo.  603; 
City  of  Kearney  y.  Tiioemason,  25  Neb.  147;  41  N,  W.  Rep.  115;  Corcoran 
V.  City  of  Benicia,  96  Cal.  1 ;  30  Pac,  Rep.  798;  Miller  v.  City  of  Morris- 
town  (N.  J.),  20  Atl.  Rep,  61.  See  Beach  Pub,  Corp.,  ^g  1151,  1505;  cit- 
ing Stearns  v.  Richmond,  81  Va.  746, 

But  it  is  liable  if  it  collects  in  channels  or  drains  and  throws  surface 
water  in  a  body  upon  the  lands  of  adjacent  proprietors  to  their  dam- 
age.—Smith  V.  City  Council  of  Alexandria,  33  Gratt.  208;  36  Am.  Rep, 
788;  O'Brien  v.  City  of  St.  Paul,  25  Minn.  333;  33  Am.  Rep.  470;  Gillison 
r.  City  of  Charleston,  16  W.  Va.  282;  37  Am.  Rep,  763;  Inhabitants  of 
West  Orange  v.  Field,  37  N.  J.  Eq.  600;  45  Am.  Rep.  670;  Noonan  v.  City 
of  Albany,  79  N,  Y.  470;  35  Am.  Rep.  540;  North  Vernon  v.  Voegler,  89 


CORPOHATIONS    rEUFOUMINO    STATUTOUV    Dl  TIES.       303 

iic<j[Iigeiici'  ill  tho  servant,  there  is  none  io  the  muster,  if  the 
servant  is  properly  selected.     But  if  the  plan  be  negligently 

Ind.  77;  Elliott  v.  City  of  Oil  City,  129  Pa.  570;  18  Atl.  Rep.  653;  Butler 
-.  Vlll:ige  of  Edpewater,  (>  N.  Y.  S.  Rep.  174;  Stoehr  r.  City  of  St.  Paul, 
54  Minn.  54'J;  5(1  N.  W.  Rep.  250;  Rychlicke  v.  City  of  St.  Louis,  !i8  .Mo. 
497;  11  S.  W.  Rep.  1001;  Bohan  v.  Borough  of  Avoca,  154  Pa.  St.  404; 
■"•  Atl.  Rep.  G04;  32  W.  N.  C.  212.     See  ante,  p.  92. 

Hut  In  grading  streets  and  constructiug  gutters  a  city  is  not  bound  to 
provide  for  extraordinary  storms. —  AUeu  r.  City  of  Chippewa  Falls,  52 
Wis.  430;  3S  Am,  Rep.  748;  Pearson  u.  City  of  Duluth,  40  Minn.  438;  42 
N.  V.  Reii.  394. 

And  where  the  injury  was  occasioned  by  the  concentration  and  dis- 
charge of  surface  water  through  a  culvert  of  insulllcient  size  and  by  the 
fact  that  the  laud  in  question  was  on  a  lower  level  than  the  street  the 
corporation  was  held  not  liable. —  VVeis  v.  City  of  Madison,  75  Ind.  241 ; 
39  Am.  Rip.  135. 

Where  a  municipal  corporation  by  raising  the  grade  of  a  street  de- 
stroyed the  existing  drainage  and  the  property  of  an  adjoining  land 
owner  was  damaged  by  the  collection  surface  watcrcaused  thereby  it  was 
held  that  the  city  was  liable  iu  damages  to  him,  being  bound  to  provide  a 
temporary  escape  for  the  water  and  was  not  relieved  by  the  construction 
of  a  culvert  which  at  once  became  stopped  up. —  Ross  v.  City  of  Clinton, 
46  la.  r.OC;  2<;  Am.  Rep.  ltJ9. 

In  an  action  Ijy  the  owner  of  laud  for  damages  caused  by  the  city  negli- 
gently allowing  soil  to  ob.struct  the  plaintiff's  driveway  in  the  course  of 
Improving  Its  streets,  It  was  held  the  fact  that  plaintiff's  property  was 
bfueflted  by  the  improvement  was  no  defense. —  Martinsville  v.  Shirley, 
84  Ind.  54G. 

Where  the  owners  of  adjacent  property  have  made  improvements 
with  reference  to  the  established  grade,  the  city  is  liable  for  negligently 
permitting  obstructions  by  reason  of  which  injuries  accrue  to  the  prop- 
erty owners  even  though  such  obstructions  leave  the  property  in  no 
worse  condition  than  it  was  before  the  city  had  made  the  streets. — 
Powers  r.  Council  Bluffs,  50  la.  197.  See  Smith  v.  Board  of  Com'rs  of 
Wayne  County,  50  Ohio  St.  G28;  35  N.  E.  Rep.  79G. 

As  to  the  Statute  of  Limitations  affecting  actions  of  this  liind  In  City 
of  North  Vernon  v.  Voegler  (103  Ind.  314;  25  Am.  Law  Rig.  101),  it  is 
held  that  where  the  cause  of  action  is  the  negligince  and  unskillfulncss 
o(  the  olllcers  of  a  municipal  corporation  In  the  improvement  of  a  street, 
the  Injury  is  complete  and  permanent  constituting  but  one  cause  of 
action,  and  in  a  suit  on  that  cause  of  action  all  damages  present  and 
prospective  may  be  recovered;  and  for  fresh  dainagis  resulting  from  the 
Improvement,  a  second  action  will  not  lie,  criticising  and  dlatlnsuishing 
Mitchell  V.  Darley  Main  Colliery  Co.,  Eng.  Ct.  App.  24  Am.  L.  Reg.  (N. 


304  MORE   THAN   ORDINARY   CARE. 

carried  out,  then  the  employers  of  such  negligent  servants 
are  liable,  although  the  plan  might  be  good  enough  {d). 

(d)  See  Grote  v.  Chester  &  Holyhead      501.    See  Thome  v.  London  (Mayor  of), 
Ry.    Co.,   2  Exch.  251,  as   explained  In      L.  R.  9  Ex.  163;  43  L.  J.  Ex.  115. 
Francis  v.  Cockerell,  L.  R.  5  Q.  B.,  pp.  184, 

S.)  432,  and  Brunsden  v.  Humphrey,  Id.  369;  S.  P.,  Keil  v.  City  of  St. 
Paul,  47  Minn.  288;  50  N.  W.  Rep.  83. 

Sewers  and  Drains.  —  A  municipal  corporation  is  not  liable  for  a 
defect  in  the  plan  of  sewerage. —  Eozelle  v.  City  of  Anderson,  91  Ind. 
591 ;  Johnston  v.  District  of  Columbia,  1  Mackey,  427 ;  City  of  Denver  v. 
Capelli,  4  Colo.  25;  34  Am.  Rep.  62;  City  of  Evansville  v.  Decker,  84 
Ind.  325;  43  Am.  Rep.  86;  Hardy  v.  Brooklyn,  7  Abb.  Pr.  N.  Y.  N.  Cas- 
403;  Champion  v.  Town  of  Crandon,  84  Wis.  408;  54  N.  W.  Rep,  775; 
Garratt  v.  Trustees  of  Canandaigna,  135  N.  Y.  436;  32  N.  E.  Rep.  142; 
Attwood  V.  City  of  Bangor,  83  Me.  582;  22  Atl.  Rep.  466.  But  for  negli- 
gence in  either  the  devising  or  the  adoption  of  plans  for  sewerage  the 
corporation  is  liable.  —  City  of  Seymour  v.  Cummins,  119  Ind.  148;  21  N. 
E.  Rep.  549;  City  of  Terre  Haute  v.  Hudnut,  112  Ind.  542;  13  N.  E.  Rep. 
686;  Munk  v.  City  of  Watertown,  67  Hun,  261;  22  N.  Y.  S.  Rep.  227; 
Stoddard  ».  Village  of  Saratoga  Springs,  127  N.  Y.  561;  27  N.  E.  Rep. 
1030;  City  of  New  Albany  v.  Ray,  3  Ind.  App.  321;  29  N.  E.  Rep.  611. 
Nor  is  a  municipal  corporation  liable  for  injuries  caused  by  sewers  of 
insuflScient  capacity,  when  not  defectively  constructed  or  left  out  of 
repair.  —  Collins  v.  City  of  Philadelphia,  93  Pa.  St.  272;  Mayor,  etc., 
Americus  ».  Eldridge,  64  Ga.  524;  37  Am,  Rep.  89;  Pair  v.  City  of  Phil- 
adelphia, 88  Pa.  St.  309;  32  Am.  Rep.  455;  Springfield  v.  Spence,  39  Ohio 
St.  665;  Rozelle  v.  Anderson,  91  Ind.  591;  Heesion  w.  City  of  Wilming- 
ton (Delaware),  27  Atl.  Rep.  830:  Rice  v.  Evansville,  108  Md.  7;  68  Am. 
Rep.  22;  Bear  v.  City  of  AJlentown  (Pa.),  23  Atl.  Rep.  1062;  Buckley 
p.  City  of  New  Bedford,  155  Mass.  64;  29  N.  E.  Rep.  201;  Costello  v. 
Conshohocken,  8  Pa.  Co.  Ct.  R,  639.  See  Beach  Pub.  Corp.,  §  1148.  But 
the  city  may  become  liable  after  notice. —  Harrigan  v.  City  of  Wilmington, 
8  Del.  140;   12  Atl.  Rep.  779. 

"  In  Aurora  v.  Love  (93  111.  521),  it  was  held  that  a  city  was  liable  to 
lot  owners  for  damages  caused  by  the  inadequacy  of  a  street  culvert.  So 
in  Young  v.  City  of  Kansas,  27  Mo.  App.  101.) 

But  it  Is  liable  for  injuries  caused  by  failure  to  repair  or  complete  the 
construction  of  its  sewers  (Savannah  v.  Spears,  66  Ga.  304;  Winn  v. 
Rutland,  52  Vt.  481;  Hardy  v.  City  of  Brooklyn,  90  N.  Y.  435;  Daggett  v. 
City  of  Cohoes,  7  N.  Y.  S.  Rep.  882;  Markle  u.  Borough  of  Berwick,  142 
Pa.  St.  84;  21  Atl.  Rep.  794;  City  of  Valparaiso  v.  Cartwright,  8  Ind.  App. 
429;  35  N.  E.  Rep.  1051),  and  for  negligence  in  constructing  (Semple  v. 
Mayor,  etc.,  Vicksburg,  62  Miss.  63;  Winn  v.  Rutland,  52  Vt.  481;  Elgin 
V.  Kimball,  90  111.  356;  Savannah  v.  Spears,  66  Ga.  304;  Chalkley  v.  City 


COUPOUATIONS    rKKFORMINO    8TATUTOKY    DlllKS.       3()5 

In  the  case  of  Ruck  v.  Williams,  it  appoars  tliat  coin- 
missionorfl  had  omitted  to  put  up  a  flap  at  the  mouth  of  a 

of  Richmond,  88  Va.  402;  14  S.  E.  Rep.  339;  City  of  Frostburg  v.  Duffy, 
70  Md.  47;  16  Atl.  Rep.  642;  Defer  v.  City  of  Detroit,  67  Mich.  346;  :?4  N. 
W.  Rep.  680;  IJutler  p.  Village  of  Edgewater,  6  N.  Y  S.  liep.  174),  or 
malntalninc  them. —  O'Gorman  v.  Morris,  26  Minn.  267;  Johnston  v.  Dist. 
Columbia,  6  Sup.  Ct.  I{ep.  923.  See  Prlncetown  v.  GleHke,  93  Ind.  102; 
Savannah  v.  Cleary,  67  Ga.  153;  Post  v.  Boston,  141  Mass.  1S9;  City  of 
La  Salle  r.  Porterlleld,  138  111.  114;  27  N.  E.  Rep.  937;  Buchanan  v.  City 
of  Duluth,  40  Minn.  402;  42  N.  W,  Rep.  204;  Fort  Wayne  v.  Coombs,  107 
Ind.  75;  57  Am.  Rep.  82.     See  Beach  Pub.  Corp.,  §§  753,  766. 

If  a  sewer  becomes  obstructed  whereby  damage  ensues  no  responsibil- 
ity attaches  to  the  corporation  except  afternotice  and  neglect  to  repair. — 
Bannagan  r.  I)i;<t.  Columbia,  2  Mackey,  285.  Sec  Johnston  v.  Dist.  Colum- 
bia, Mackkey,  427;  Munk  V.  City  of  Watertown,  67  Hun,  261;  22  N.  Y. 
8.  Rep.  227;  Allen  v.  City  of  Boston,  169  Mass.  324;  34  N.  E.  Rep.  519; 
Spangler  v.  City,  etc.,  of  San  Francisco,  84  Cal.  12;  23  Pac.  Rep.  1091; 
City  of  Champaign  r.   Forrester,  29  111.  App.  117.     See  Notice,  infra. 

Awnings,  Sigrns,  etc. —  Municipal  corporations  are  liable  for  injuries 
caused  by  defectively  hung  awnings  over  sidewalks  (Bohen  v.  City  of 
Waseca,  32  Minn.  176;  Drake  v.  Lowell,  13  Mete.  292;  Day  v.  Milford,  6 
Allen,  98;  Bielingu.  City  of  Brooklyn,  120  N.  Y.  98;  24  N.  E.  Rep.  389;  Lar- 
son r.  Grand  Forks,3  Dak.  307),  as  well  as  the  owner  (Jessen  v.  Swelgert, 
«6  Cal.  182;  4  W.  C.  Rep.  48t;),  by  the  fall  of  a  dangerous  wall  (Parker  v. 
Macon,  39  Ga.  725 ;  contra,  Howe  v.  New  Orleans,  12  La.  Ann.  481),  or  a 
tree  (Chase  r.  City  of  Lowell,  151  Mass.  422;  24  N.  E.  Rep.  212;  but  not 
for  Injuries  caused  by  defectively  hung  signs  (Hewiston  v.  City  of  New 
Haven,  37  Conn,  475;  9  Am.  Rep.  342;  Taylor  r.  Peckhum,  City  Treas- 
urer, etc.,  8  R.  I.  349;  5  Am.  Rep,  578;  Gray  v.  City  of  Emporia,  43  Kan. 
704;  23  Pac.  Rep.  944;  Laughlin  v.  Philadelphia  (Pa),  21  Atl.  Rep.  754), 
the  owner  or  occupant  being  liable  in  such  cases. —  Salisbury  v.  Herch- 
enroder,  106  Mass.  458;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Hopkins,  54  Ark. 
209;  15  S.  W,  Rep.  610.  See  Beach  Pub.  Corp.,  §  1512;  Elliott  on 
Roads  and  Streets,  pp.  447,  464. 

Nor  for  Injuries  caused  by  snow  falling  from  adjoining  roofs. —  Pllxon 
».  Lowell,  13  Gray,  59;  Shipley  v.  Fifty  Associates,  101  Mass.  251.  In 
Langau  v.  Atchison,  35  Kan.  318;  11  Pac.  Rep.  38,  a  municipal  corporation 
was  held  liable  for  injuries  caused  by  the  fall  of  a  show-bill  board  on  a  lot 
adjoining  a  sidewalk.  And  in  City  of  Vicksburg  v.  McLaln,  (Miss.) 
6  So.  Rep.  774,  a  city  was  held  liable  for  an  injury  caused  by  the 
falling  of  an  overhanging  bluff. 

Blaetlngr  in  Streets. —  A  municipal  corporation  is  liable  for  injuries 
caused  by  blasting  in  the  highway  where  the  work  is  negligently  done.— 
City  of  Jollet  I'.  Harwood,  86  111.  110;  39  Am.  Rep.  17;  City  of  Joliet  v. 
Seward,  99   111.  267;  Dean  v.  Randolph,  132  Mass.  475;  City  of  Logans- 

20 


306  MORE   THAN   ORDINARY   CARE. 

sewer  which  had  been  in  use  there  before.  The  specifica- 
tion   did    not    mention  the  flap,  except   that  it  said  that 

portt'.  Dick,  70Ind.  65;  36  Am.  Eep.  166;  Murphy  v.  Lowell,  128  Mass. 
396;  35  Am.  Rep.  381;  Weineru.  Hammell,  14  N.  Y.  S.Rep.  365. 

Coasting. —  Municipal  corporations  have  been  held  not  liable  for 
injuries  caused  by  coasting  in  streets  (Pierce  v.  City  of  Bedford,  129 
Mass.  53i;  37  Am.  Rep.  387;  Shultz  v.  City  of  Milwaukee,  49  Wis.  254; 
35  Am.  Rep.  779;  City  of  Lafayette  v.  Timberlake,  88  Ind.  330;  Same  v. 
Rose,  Id.  471),  although  the  principal  authorities  know  that  the  street  is 
habitually  used  for  that  purpose. —  Brumbaugh  v.  Borough  of  Bedford, 

23  Pittsb.  Leg.  J.  442.  See  Steele  v.  Boston,  128  Mass.  583;  Faulkner  v. 
City  of  Aurora,  85  Ind.  130;  44  Am.  Rep.  1;  Burford  v.  Grand  Rapids, 
53  Mich.  98;  18  N.  W.  Rep.  571;  Hutchinson  v.  Concord,  41  Vt.  271;  Ray 
V.  Manchester,  46  N.  H.  59.  See  Beach  Pub.  Corp.,  §§  758,  1240;  Elliott 
on  Roads  and  Streets,  p.  465. 

But  where  there  was  an  ordinance  prohibiting^any  sport,  play  or  exer- 
cise that  might  produce  bodily  injury  or  injure  property  on  any  street, 
etc.,  a  city  was  held  liable  for  injuries  caused  by  coasting  in  its  streets. — 
Taylor  v.  City  of  Cumberland,  Md.  Ct.  App.,  18  Chicago  Leg.  News,  19. 

Proprietor  of  toboggan  slide  liable  for  injury. —  Haden  v.  Clarke,  10  N. 
S.  Rep.  291. 

SidewalkB, —  A  city  or  town  is  liable  for  injuries  caused  by  defects  in 
its  sidewalks. —  Chicago  v.  Langlass,  66  111.  361;  Market  v.  St.  Louis,  56 
Mo.  189;  Furnell  v,  St.  Paul,  20  Minn.  117;  Atlanta  v.  Perdue,  56  Ga. 
607;  Barnes  v.  Newton,  46  la.  567;  Studley  v.  Oshkosh,  45  Wis.  380: 
DelgertJ.  St.  Paul,  14  Fed.  Rep.  567;  Osborne  u.  Hamilton,  29  Kan.  1; 
City  of  Chicago  v.  Chase,  33  111.  App.  551 ;  Roe  v.  City  of  Kansas,  100  Mo. 
190;  13  S.  W.  Rep.  404;  O'Neil  v.  Village  of  West  Branch,  81  Mich. 
544;  45  N.  W.  Rep.  1023;  City  of  Sherman  v.  Williams,  77  Tex.  310;  14 
S.  W.  Rep.  130;  Bauguss  v.  Atlanta,  74  Tex.  629;  12  S.  W.  Rep.  750; 
City  of  Lincoln  v  Smith,  28  Neb.  762;  45  N.  W.  Rep.  41;  Village  of 
Valparaiso  v.  Donovan,  28  Neb.  406;  44  N.  W.  Rep.  449;  Moon  v.  Iowa, 
81  Mich.  635;  40  N.  W.  Rep.  25;  Yearanceu.  Salt  Lake  City,  6Utah,398; 

24  Pac.  Rep.  254;  Dooley  v.  Sullivan,  112  Ind.  451;  14  N.  E.  Rep.  566; 
Young  V.  Waterville,  .^9  Minn.  190;  39  N.  W.  Rep.  97;  Village  of  Mans- 
field r.  Moore  (111.),  16N.E.  Rep.  246;  Gordon  v.  Richmond,  83  Va.  436; 
2  S.  E.  Rep.  727;  Pomfrey  v.  Saratoga  Springs,  104  N.  Y.  459;  11  N.  E. 
Rep.  43;  Hutchinson  v.  Olympia,  2  Wash.  314;  Kellogg  v.  Janesvllle,  34 
Minn.  132;  Dougherty  v.  Horseheads,  73  Hun,  443;  26  N.  Y.  S.  Rep.  642; 
Lebn  v.  Brooklyn,  19  N.  Y.  S.  Rep.  668;  McSherry  v.  Canandalgua,  129 
N,  Y.  612;  29  N.  E.  Rep.  821,  affirming  12  N.  Y.  S.  Rep.  751. 
And  this  is  true  whether  the  defects  exist  in  the  original  construction 
(Sawyer  v.  Newburyport,  157  Mass.  430;  32  N.  E.  Rep.  653;  Smith  v. 
Pella,  86  la.  236;  53  N.  W.  Rep.  226;  Nichols  v.  St.  Paul,  44  Minn.  494; 
47  N.   W.  Rep.  168;  City  of  Portland  v.  Taylor,  125  Ind.  522;  25  N.  E. 


COKl'ORATIONS    PEKFORMINO    STATUTOUV    ULTIKS.       307 

the  now  scwcr  must    bo  "  made   tiirlit."     The  contractor 
supposed    III'    liad    done   Ins   duty  by  puddling   the    mouth 

Hep.  469;  Kendall  v.  Albia,  73  la.  241;  34  N.  W.  Rep.  833;  City  of  Atlanta 
.  Martin,  88  Ga.  21;  13  S.  E.  Uep.  805),  or  in  the  plan  thereof.—  Hlyhl 
.  Waterville  (.Miuuesota)  ;  58  N.  W.  Kep.  817;  Rehrey  v.  Newburuli,  28 
\.  Y.  S.  Rep.  t»16,  following  Urtjuhart  t-.  0';(lensburg,  lU  N.  Y.  07,  238; 
.!  Am.  Rep.  91,  note;  Granjjer  i\  Seneca  Falls,  45  Hun,  r,0.  But  see  Betts 
.  Gloversville,  8  N.  Y.  S.  Rep.  795;  Baker  v.  Madison,  50  Wis.  874.  See 
lieach  Pub.  Corp.  §§  1484,  et  seq.;  Elliott  on  Roads  and  Streets,  p.  17. 

In  Vermont  it  is  held  that,  in  the  absence  of  statutory  liability,  an 
action  for  injuries  caused  by  a  defect  in  the  sidewalk,  cannot  be  main- 
taintvi.— Buchanan  v.  Barre,  6G  Vt.  129;  28  Atl.  Rep.  878.  See  Reed  r. 
Madison,  83  Wis.  171;  53  N.  W.  Rep.  547. 

Formerly  in  Michi^:an  it  was  the  rule,  that  cities  were  responsible  for 
Icfects  in  streets,  bridges,  cross-walks  and  culverts,  but  not  in  side- 
■valks.— O'Neil  r.  Detroit,  50  Mich.  133;  Detroit  v.  Putnam,  45  Mich. 
'.'t)3;  Grand  Rapids  v.  Wyman,  46  Mich.  51G;  Saunders  v.  Gun  Plains, 
:<;  Mich.  182;  42  N.  W.  Rep.  1008;  Alexander  v.  Big  Rapids,  70  Mich. 
-■S2;  42  N.  W.  Rep.  1071. 

The  general  rule  as  to  defective  cross-walks  is  substantially  the  same 
as  that  of  defective  .sidewalks. —  Shippoy  v.  Au.  Sable,  85  Mich.  280;  48 
N.  W.  Rep.  584;  City  of  Vandalia  v.  Ropp,  l\'J  111.  App.  344. 

A  water  i)lug  projecting  six  inches  above  the  sidewalk  and  known  to 
the  street  commissioner  was  held  a  defect  for  which  the  city  was  liable, 
(Scranton  v.  Catterson,  94  Pa.  St.  202),  so  is  a  plank  street  crossing 
when  raised  two  inches  above  the  sidewalk  (Glanty  r.  South  Bend,  106 
Ind.  305),  or  a  decayed  board  sidewalk  (City  of  Joliet  v.  MeCraney,  40 
111.  App.  381),  or  a  hole  Ave  or  six  inches  in  diameter  in  the  flagging 
:Mar\-ln  v.  New  Bedford,  158  Mass.  504;  33  N.  E.  Rep.  005),  or  a  trap- 
!  'or  cover  extending  four  inches  above  the  sid»walk  (Village  of  Evan.s- 
ton  r.  Fitzgerald,  37  111.  App.  80);  but  a  depression  in  a  sidewalk  six 
.ind  one-half  Inches  in  dfi)th,  and  eight  and  one-half  inches  in  width  was 
hiMd  not  such  a  defect  (Witham  v.  Portland,  72  Me.  539),  nor  is  astep  six 
iicties  high  when  made  necessary  by  the  topography  of  the  .street  (Bierman 
.  St.  Louis,  120  Mo.  457;  25  S.  W.  Rep.  369;  see  Miller  v.  St.  Paul,  38 
.Minn.  134;  36  N.  E.  Rep.  271;  Tabor  v.  St.  Paul,  36  Minn.  188;  30  N.  W. 
Uep.  766),  nor  loose  bricks  displaced  by  the  action  of  the  elements 
(Town  of  Gosport  r.  Evans,  112  Ind.  133;  13  N.  E.  Rep.  256),  nor  a  raised 
cros.s-walk.— Bigelow  v.  Kalamazoo,  97  Mich.  121;  60  N.  W.  Rep.  339. 

In  Dubois  r.  City  of  Kingston,  (102  N.  Y.  219;  33  AH).  L.  Jour.), 
It  was  held  that  "  placing  a  stepping-stone  on  the  outer  edge  of  a  side- 
walk of  a  street,  leaving  plenty  of  room  on  the  walk  for  travel,  is  a 
reasonable  use  of  a  street  for  the  accommodation  of  the  public,  and  a 
city  is  not  negligent  in  permitting  such  an  obstruction  to  remain 
upon  the  walk.    The  fact  that  other  persons  had  been  injured  by  falling 


308  MOKE   THAN   ORDINAEY   CARE. 

of  the  sewer.     It  was  held  that  the  commissioners  were 
liable  (e). 

(e)  Ruck  V.  Williams,  3  H.  &  X.  308,  310. 


over  the  stone  does  not  of  itself  establish  that  it  was  improperly  placed 
in  the  location  that  it  occupied,  or  that  it  was  necessarily  of  such  a  dan- 
gerous character  as  to  require  the  interposition  of  the  city  authorities  to 
remove  it.  Such  an  accident  might  well  take  place  in  reference  to  any 
necessary  structure  connected  with  the  sidewalk  or  a  building  thereon 
which  might  possibly  interfere  with  persons  using  the  same.  It  would  be 
extending  the  rule  of  the  liability  of  municipal  corporations  far  greater 
than  has  yet  been  done  in  any  decided  case,  to  hold  that  they  are  liable 
for  assenting  to  the  placing  of  stepping-stones  on  the  edge  of  sidewalks 
in  front  of  hotels,  stores,  public  buildings  and  private  residences.  The 
courts  have  gone  quite  far  in  holding  such  corporations  to  a  very  strict 
responsibility  in  reference  to  accidents  caused  by  a  failure  of  their  offi- 
cers to  keep  the  streets  and  sidewalks  in  a  proper  and  safe  condition,  but 
it  would  be  adding  to  the  corporate  liability  beyond  reasonable  limits  to 
hold  that  stepping-stones,  which  are  almost  a  necessity  in  providing  for 
the  interest,  comfort  and  convenience  of  the  public  in  the  maintenance 
of  walks,  avenues  and  streets,  constitute  a  nuisance  or  obstruction,  and 
that  corporations  are  liable  for  damages  by  reason  of  accidents  caused 
thereby.")     See  Morrassy  v.  New  York,  54  N.  Y.  Super.  Ct.  432. 

Though  the  sidewalks  have  been  constructed  without  authority. — 
Saulsbury  v.  Ithaca,  94  N.  Y.  27;  46  Am.  Rep.  122.  See  Streeter  r. 
Breckenridge,  23  Mo.  App.  244;  Sweeney  v.  Newport,  65  N.  H.  86;  18 
Atl.  Rep.  86. 

Or  constructed  by  the  lot  owner. —  Hill  v.  Fon  du  Lac,  56  Wis.  242; 
Lambert  v.  Pembroke  (N.  II.),  23  Atl.  Rep.  81;  Plattsmouth  v.  Mitchell, 
20  Neb.  228;  Kinney  v.  Tekamah,  30  Neb.  605;  46  N.  W.  Rep.  836; 
City  of  Felora  v.  Naney,  136  111.  45;  26  N.  E.  Rep.  G4o;  City  of  Chicago 
?i.  Martin,  49  111.  241;  Fuller  t;.  Jackson,  82  Mich.  480;  46  N.  W.  Rep.  721; 
McDonald  v.  Ashland,  78  Wis.  251;  47  N.  W.  Rep.  434. 

By  its  permission.—  Estelle  v.  Lake  Crystal,  27  Minn.  243;  Graham  t;. 
City  of  Albert  Lea,  48  Minn.  201;  50  N.  W.  Rep.  1108. 

And  though  the  defect  was  caused  by  a  third  person  without  the  con- 
sent of  the  town.—  Elkhart  v.  Ritter,  66  Ind.  136;  Huntington  v.  Breen, 
77  Ind.  29.  See  Village  of  Carterville  v.  Cook,  29  111.  App.  495;  affirmed, 
129  111.  152;  22  N.  E.  Rep.  14. 

The  promise  of  the  owner  to  repair,  will  not  release  the  city  from 
liability.— Smalley  v.  Appleton,  75  Wis.  18;  43  N.  W.  Rep.  826. 

The  city  has  its  remedy  over  against  the  person  causing  the  nuisance. 
But  he  is  not  concluded  by  a  judgment  against  the  city  unless  he  had 
notice  and  an  opportunity  to  defend.— Catterling  v.  Frankfort,  79  Ind. 
547;  41  Am.  Rep.  G27. 


COUPOIiATIONS   PEKFOimiNO   STATUTORY   DUTIES.       309 

[247]  Whore  a  corporation  employ  an  independent 
contractor  to  execute  work,  which  it  is  the  statutory  duly 

A  party  not  owning  the  premises  In  which  he  has  his  offlcc,  and  to 
•whom,  tliert'fore,  no  duty  accrues  as  to  maintaining  the  adjacent  side- 
walk, does  not,  by  lifting  up  a  loose  board  in  such  sidewalk  and  replacing 
it,  render  himself  liable  in  daniuges  to  one  who  steps  on  It  thereafter,  to 
his  Injury.— Davis  r.  Michigan  Bell  Telephone  Co.,  (;i  Mich.  307;  28  N. 
W.  Rep.  108. 

Plaintiff  need  not  allege  that  the  city  owned  the  sidewalk,  or  ordered  It 
to  be  built  or  adopted  It. —  Halre  v.  Kansas,  76  Mo.  438. 

And  though  the  lot  owner  Is  required  to  keep  the  sidewalk  In  repair, 
and  Is  subject  to  a  penalty  for  a  failure  to  do  so. —  Flynn  r.  Canton  Co., 
40  Md.  312;  14  Am.  Hep.  603;  Jansen  v.  Atchison,  IG  Kan.  .S58;  Henry 
r.  Sprague,  11  R.  I.  456.  But  see  Twp.  of  Chartlers  v.  Langdon,  114  Pa. 
St.  541;  7  Atl.  Rep.  84. 

The  lot  owner  Is^not  liable  for  injuries  cansed  by  defects  in  the  side- 
walk.— City  of  Keokuk  r.  Independent  District  of  Keokuk,  53  la.  352;  86 
Am.  Rep.  220.     Sec  Sammins  v.  Wilhelm,  G  Ohio  Cir.  Ct.  Rep.  565. 

But  where  a  city  charter  required  the  lot  owners  to  keep  sidewalks 
«Mn  a  good  and  safe  condition  for  use,"  and  made  them  liable  for  injuries 
to  any  person  by  *'  reason  of  a  defective  sidewalk."  The  sidewalk  in 
front  of  defendants'  premises  had  become  smooth  and  slippery  by  long 
use,  and  some  third  person,  with  their  knowledge,  painted  it,  thus  In- 
creasing its  slippcriness.  Plaintiff  slipped  and  fell  on  it  sustaining 
Injuries.  It  was  held  that  the  defendants  were  liable. —  Morton  r.  Smith, 
48  Wis.  265;  33  Am.  Rep.  811.  So  where  the  property  owner  neglected 
to  repair  a  sidewalk  so  that  plaintiff  was  injured  he  may  proceed  either 
against  the  owner  or  the  borough. —  Borough  of  Brookville  r.  Arthurs, 
162  Pa.  St.  334;  25  Atl.  Rep.  551;  31  W.  N.  C.  357.  See  McDaneld  ». 
Logi,  143  III.  487;  32  N.  E.  Rep.  423;  Thuringer  r.  New  York,  etc.,  R. 
Co.,  71  Hun,  526;  24  N.  Y.  S.  Rep.  1087. 

Or  for  injuries  caused  by  natural  accumulations  of  snow  and  ice. — 
Vandyke  v.  Cincinnati,  1  Disney,  5.'^2. 

Or  for  injuries  caused  by  accumulations  of  ice  formed  by  water  drip- 
ping from  the  owner's  house. —  Moore  v.  Gadsden,  87  N.  Y.  84;  41  Am. 
Rep.  352;  93  N.  Y.  12. 

But  he  is  liable  for  injuries  caused  by  his  negligence  in  respect  to  coal 
holes  or  openings  in  sidewalks.—  Calder  v.  Smalley,  66  la.  219;  23  N.  W. 
Rep.  6.<18;  Papworth  v.  City  of  Milwaukee,  64  Wis.  389;  24  N.  W.  Rep. 
431  (and  the  city  also  in  this  case);  Houston  v.  Traphagan,  S.  C.  N.  J., 
20  Rep.  411;  Grove  v.  Kansas,  75  Mo.  672;  Jennings  v.  Van  Schaick,  108 
N.  y.  530;  15  N.  E.  Rep.  424;  Dickson  r.  Hollister,  123  Pa.  St.  421;  16 
Atl,  Rep.  484;  23  W.  N.  C.  128;  City  of  Wabasha  r.  Southworth,  54 
Minn.  79;  55  N.  W.  Rep.  818;  Hascom  r.  Boston,  141  Mass.  242.  See 
Beach  Pub.  Corp.,  §  1516. 


310  MORE  THAN  ORDINARY  CARE. 

of   the     [248]     corporation   to  perform,   the  corporation 
are  liable  for  injuries  which  arise  as  a  natural  consequence 

But  not  when  the  premises  are  under  the  control  of  a  tenant  and 
there  is  no  fault  on  the  part  of  the  landlord.— Wolf  v.  Kirkpatrick,  101 
N.  Y.  146;  i  N.  E.  Kep.  188;  Korte  v.  C.  G.  Lewis  Coal  Co.,  54  Minn.  530; 
56  N.  W.  Rep.  246.     See  ante,  p.  102  n. 

In  Calder  v.  Smalley,  the  Court  said:  "The  first  objection  to  judg- 
ment discussed  by  defendant's  counsel  is  based  upon  the  position  that, 
if  plaintiff  has  any  remedy  for  the  injury  she  sustained,  it  should  be 
pursued  against  the  city,  which  is  alone  liable.  Counsel,  to  support  this 
objection,  rely  upon  City  of  Keokuk  v.  Independent  Dist.  of  Keokuk,  53 
la,  352 ;  5  N.  W.  Rep.  503.  In  our  opinion  the  distinction  between  that 
case  and  this  is  obvious.  I.^  that  case  the  injury  for  which  recovery  was 
sought,  resulted  from  the  dangerous  and  defective  condition  of  the 
sidewalk  itself,  the  construction  and  repair  of  which  the  city,  under 
authority  assumed  by  ordinance,  was  empowered  to  require,  in  this  the 
alleged  injuries  were  caused,  not  by  defective  sidewalk,  but  by  a  defective 
scuttle  and  cover,  which  were  constructed  for  the  private  use  of  defend- 
ant, either  with  or  without  the  authority  of  the  city.  If  constructed  and 
maintained  without  authority  of  the  city,  the  scuttle  and  cover  constituted 
a  nuisance,  and  defendant  is  liable  for  all  injuries  resulting  therefrom; 
if  constructed  and  maintained  with  such  authority,  defendant  is  liable,  in 
the  absence  of  the  care  in  their  construction  and  repair  required  by  law. 
See  Dill.  Mun.  Corp.,  §§  699,  1032,  1034;  Com.  v.  Boston,  97  Mass.  555; 
Congreve  v.  Morgan,  18  N.  Y.  84;  and  cases  cited  in  City  of  Keokuk?;. 
Independent  Dist.  of  Keokuk,  53  la.  352  (357) ;  5  N.  W.  Rep.  503.  It 
will  be  observed  that  the  petition  bases  the  claim  for  recovery  both  on 
the  ground  that  the  scuttle  and  cover  were  made  and  maintained  without 
authority,  and  that  they  were  negligently  constructed.  We  need  not 
inquire  whether  the  city  may  be  liable  as  well  as  defendant.  It  is  suf- 
ficient for  the  purpose  of  this  case  to  hold  that  defendant  is  liable  for 
Injuries  received  by  plaintifE,  caused  by  the  defective  construction  of  the 
scuttle  and  cover,  and  that  the  rule  of  City  of  Keokuk  v.  Independent 
Dist.  of  Keokuk  does  not  apply  to  the  facts  of  this  case.  It  may  be  said, 
in  rep'y  to  the  argument  of  defendant's  counsel  upon  this  point,  that  the 
case  is  that  of  the  unauthorized  or  negligent  use  of  a  sidewalk,  and  that 
the  cover  of  the  scuttle  cannot  be  regarded,  as  claimed  by  counsel,  as 
only  a  part  of  the  sidewalk.  The  negligent  or  unauthorized  use  of  a 
part  of  the  sidewalk  as  a  cover  for  the  scuttle  rendered  defendant 
liable  for  the  injuries,  just  as  he  would  have  been  liable  in  case  he  had,  in 
a  like  manner,  used,  for  his  own  private  benefit,  a  part  cf  the  sidewalk 
for  any  other  purpose." 

Ordinances  requiring  the  owners  or  occupants  of  property  to  keep 
their  sidewalks  clear  of  ice  and  snow,  under  a  penalty,  have  been  upheld 
as  constitutional.— Bensal  v.  Mayor,  etc.,  19  Ohio,  418;  Paxon  v.  Sweat, 


MUNICIPAL   COIiPOILtVTIONS  —  SIDEWALKS.  311 

of  the  work  [249]  ordered  to  be  done  liaving  been  done 
without  proper  safe<]juarda ;  but  they  are  not  liable  for  the 

13  N.  J.  L.  196;  Goddard  Pet.,  IG  Pick.  504;  contra,  Grldley  v.  City  of 
Bloomlnston,  88  111.  554;  30  Am.  Rep.  5CG;  Chicago  u.  O'Brien,  111  111. 
632;  17  Chicago  Legal  News,  39.  In  Noonan  v.  Stillwater,  (33  Minn.  198; 
17  Chicago  Legal  News,  222),  it  was  held  that  a  clause  In  the  city  charter 
of  StiilwatcT,  which  provided  tliat  atljoining  owners  should  be  liable  for 
injuries  resulting  from  a  neglect  to  lieep  their  sidewalks  in  repair  so 
far  as  it  assumed  to  make  the  owners  liable  to  others  than  the  city  was 
unconstitutional. 

Snow  and  ice  suffered  to  remain  in  an  uneven  and  rounded  form  on 
sidewalks  aiO  such  defects  as  may  render  the  city  liable  for  injuries 
received  by  foot  passengers  (Dooley  v.  City  of  Meriden,  44  Conn.  17; 
26  Am.  Rep.  433;  Billings  v.  Worcester,  102  Mass.  329;  Cook  v.  City  of 
Milwaukee,  24  Wis.  270;  Foxworthy  v.  Hastings,  31  Neb.  825;  48  N.  W. 
Kep.  901;  City  of  Champaign  v.  Jones,  .32  111.  App.  179,  affirmed  in  23  N. 
E.  Uep.  1125;  Foley  u.  Troy,  45  Hun,  39(J;  Boulder  v.  Niles,  2  Colo.  415; 
Joliuson  V.  Glens  Falls,  02  Huu,  G18;  IG  N.  Y.  S.  Rep.  585;  Keane  u. 
Walerford,  130  N.  Y.  188;  29  N.  E.  Rep.  130.  See  Lawy.  Rep.  Ann.  178, 
note),  or  in  other  dangerous  manner. —  Gaylord  r.  New  Britain,  58  Conn. 
35)8;  20  All.  Rep.  3Go;  Gillrie  v.  Lockport,  122  N.  Y.  403;  25  N.  E.  Rep. 
357;  City  of  Lincoln  v.  Smith,  28  Neb.  7G2;  45  N.  W.  Rep.  41;  Ayres  r. 
Ilammundsport,  7  N.  Y.  S.  Rep.  174;  Kinney  v.  Troy,  38  Hun,  285; 
Hughes  V.  Lawrence,  160  Mass.  474 ;  36  N.  E.  Rep.  485  ;  Cosner  r.  Center- 
ville  (Iowa),  57  N.  W.  Rep.  636;  McDonnell  v.  Philadelphia,  12  Pa.  Co. 
Ct.  K.  672. 

But  the  mere  slipperiness  of  a  sidewalk  caused  by  such  accumulations 
Is  not  such  a  defect  as  to  render  the  corporation  liable  for  injuries  re- 
ceived by  one  walking  over  it. —  Grosseubach  v.  City  of  Milwaukee,  65 
Wis.  31;  2G  N.  W.  Rep.  182;  Cook  v.  Milwaukee,  27  Wis.  191;  Chicago  ». 
McGiveu,  78  111.  347;  Gibson  v.  Johnson,  4  Hi.  App.  288;  Broburg  v. 
City  of  Des  Moines,  63  la.  523;  60  Am.  Rep.  75G;  Smyth  v.  Bangor,  72 
Me.  249;  Henkes  v.  Minneapolis,  42  Minn.  530;  44  N.  W.  Rep.  1026; 
Wilder  V.  Walla  Walla,  6  Wash.  377;  33  Pac.  Rep.  1054;  Lawless  v.  Troy, 
'.;niun,  632;  18  N.  Y.  S.  Rep.  506;  Hausman  v  Madison,  85  Wis.  187; 
'■')  N.  ^V.  Rep.  167;  Chase  v.  Cleveland,  44  Ohio  St.  505;  Aurora  v.  Parks, 
-'1  111.  App.  459;  Chamberlain  v.  Oshkosh,  84  Wis.  289;  54  N.  W.  Rep. 
18;  Lyon  v.  Logansport,  9  Ind.  App.  21 ;  35  N.  E.  Rep.  125;  32  N.  E.  Rep. 
682;  Damon  r.  Boston,  149  Mass.  147;  21  N.  E.  Rep.  235;  Kinney  p.  Troy, 
108  N,  Y.  567;   15  N.  E.  Rep.  728;  Kaveny  v.  Troy,  108  N.  Y.  571;   15  N. 

E.  Rep.  726;  Hanson  v.    Warren    (Pa.),  14  Atl.     Rep.  405;    Fairgrieve 

F.  Moberly,  39  Mo.  App.  31;  contra,  Cloughessy  v.  City  of  Waterbury,  51 
Conn.  405;  50  Am.  Rep.  38;  Kinney  v.  City  of  Troy,  38  Hun,  285. 

lu  Grosseubach  v.  City  of  Milwaukee,  swpni,  the  court  said:  "This 
court  has  gone  to  the  extent  of  holding,  in  effect,  that  when  a  sidewalk 


312  MORE   THAN   ORDINARY    CARE. 

incidental  negli-  [250]  gence  of  the  contractor  and  his 
servants  during  the  process  of  carrying  out  such  work,  the 

is  80  constructed  as  to  be,  with  the  ice  and  snow  that  would  ordinarily 
accumulate  upon  it  in  winter,  unsafe  to  travel  thereon  with  ordinary  care, 
then  it  is  defective.— Hill  v.  Fond  du  Lac,  56  Wis.  248;  U  N.  W.  Rep. 
25;  Stilling  v.  Town  of  Thorp,  54  Wis.  537;  11  N.  W.  Rep,  906.  This  is 
substantially  the  ruling  in  the  Massachusetts  cases  cited  by  counsel. 
The  Connecticut  court  professes  to  have  established  a  more  stringent  rule 
as  to  cities. —  Cloughessy  v.  Waterbury,  51  Conn.  405.  But  none  of  the 
cases  seem  to  go  to  the  extent  of  holding  that  mere  slipperiness,  result- 
ing wholly  from  natural  causes,  constitutes  a  defect. —  See  the  cases  In 
this  court  above  cited,  and  Cook  w.  Milwaukee,  24  Wis.  270;  27  Wis.  191; 
Stanton  v.  Springfield,  12  Allen,  566;  Billings  v.  Worcester,  102  Mass. 
329.  The  mere  fact  that  there  was  melting  snow  and  water  passing 
along  the  gutter,  and  over  the  cross-walk  and  apron,  westerly  along 
Oneida  street,  can  not  be  regarded  as  a  defect,  under  the  circumstances 
stated.  Such  melting  snow  and  water  had  to  go  somewhere,  and  ordi- 
narily must  go  along  the  surface  of  the  street." 

And  in  Kinney  v.  City  of  Troy  (38  Hun,  285),  Learned,  P.  J.,  said;  " In 
examining  the  Massachusetts  case  in  Stanton  v.  Springfield,  12  Allen,  566, 
and  Luther  v.  Worcester,  97  Mass.  268,  and  the  like,  which  are  strongly 
urged  on  us  by  the  defendant,  we.  must  notice  that  the  liability  there  sued 
upon  is  statutory.  In  the  latter  case,  at  page  271,  it  is  said:  '  It  can 
not  be  supposed  that  the  legislature  in  making  towns  liable  for  damages 
caused  by  defects  in  highways  intended,'  etc.  And  it  will  be  seen  by  ref- 
erence to  the  former  case  that  the  statute  is  one  which  applies  to  towns 
and  cities,  requiring  them  to  keep  roads  '  safe  and  convenient,'  and  the 
argument  of  the  court  is  that  towns  could  not  be  required  to  keep  roads 
free  from  ice.  But  the  only  liability  under  which  our  cities  are  is  one 
which  arises  from  the  common-law  principle  of  liability  for  negligence. 
There  is  not  an  absolute  duty  to  keep  roads  and  streets  safe  and  conve- 
nient. But  there  is  a  duty  not  to  be  negligent.  And  the  question  of 
pegligence  is  one  for  the  jury,  as  has  often  been  said.  I  am  aware  of 
the  danger  that  juries  may  sympathize  with  the  injured  plaintiff,  and 
may  be  unjust  to  the  corporation.  But  that  is  one  of  the  imperfections 
of  the  tribunal,  which  the  people  have  established.  It  is  no  less  the  liable 
lawful  tribunal.  Now  I  cannot  see  that  a  smooth  surface  of  icy  sidewalk 
may  not  be  just  as  dangerous  as  a  ridgy  surface.  And  if  the  city  is  liable 
when  it  knowingly  permits  a  ridge  of  ice  to  continue  on  a  sidewalk  on 
which  a  person  falls,  it  must  be  liable  when  it  knowingly  permits  a  smooth 
piece  of  ice  to  continue,  and  a  similar  accident  happens.  The  doctrine  of 
Todd  V.  City  of  Troy  (61  N.  Y.  506),  does  not  rest  upon  the  particular 
shape  in  which  the  ice  existed.  It  rests  on  the  duty  to  exercise  an  active 
vigilance  to  keep  the  streets  in  a  reasonably  safe  condition.  And  such 
has  been  the  doctrine  of  the  numerous  cases  which  have  followed  that. 


SIDEWALKS.  313 

mode  of  cloiiij;  which  is  no  pjiit  of  tho  order  of  the    corpo- 
nition  (/  )• 

(/)  Grayr.  I'ullcn.sn.  AS.  970;  34L.  J.  Q.  B.  4-JC;  Hole  v.  Tho  SittlnKl)Ourno 

J.  Q.  B.  2« ;  Shcjirinan,  s.  142  ;  Wliiirton,  Uy.  Co.,  0  N.  &  X.  <88;  30  I.,  J.  Kx.  81 ;  [a 

•79;  Hill  V.  Now  Ulver  Co.,  9  H.  A  S.  3Ce;  Thomp.son  on  Ncg.,  p.  9<)4]. 
Dower  f.  I'eate,  I^  U.  1  Q.  H.  V.:m ;  45  L. 

lu  Muller  r.  Ncwbiirg  (32  IIuu,  24),  a  majority  of  the  court  held  that 
when  ice  formed  on  Thursday,  and  the  plaintiff  fell  anti  was  injured  on 
Sunday,  there  was  not  eviilence  for  the  jury  on  the  question  of  prcsunip- 
Uve  notice  to  the  defendant.  I  think  great  diUiculty  will  be  found  if  the 
courts  attempt  to  declare,  as  law,  what  time  the  obstruction  must  have 
existed  in  order  to  permit  the  question  of  notice  to  go  to  the  jury.  The 
court  In  tlic  present  case  carefully  charged  tiie  jury  that  the  mere  fact 
that  there  was  an  icy  sidewalk  was  not  sullicient:  that  the  question  was 
whether  the  city  had  exercised  that  vigilance  which  sliould  be  exercised 
ander  the  circumstances.  I  cannot  see  that  such  vigilance  should  be 
directed  only  to  uneven,  and  never  to  smooth  ice."  Bockes,  J.,  said: 
"The  defendant  was  bound  to  keep  and  maintain  its  streets  in  a  reason- 
ably safe  condition  for  public  travel,  and  this  asjegards  impedimeuts  to 
safe  travel,  whether  because  of  actual  obstructions,  as  in  the  case  of 
hammocks  and  dangerous  obstructions  of  every  kind  of  a  material  char- 
ucter,  as  also  because  of  holes  and  slippery  surfaces.  The  particular 
form  of  the  obstruction  which  may  be  claimed  to  be  dangerous  or  other- 
wise cannot  be  declared  as  matter  of  law ;  that  must  depend  entirely  upon 
the  proof  as  to  what  caused  the  injury.  A  smooth  slippery  surface  may 
be  dangerous  to  the  traveler,  and  such  condition  of  danger  should  be 
remedied  in  a  case  like  the  present,  or  liability  for  injuries  to  him  because 
6t  it  would  follow,  so  be  it  that  the  city  had  notice,  actual  or  construct- 
ive, and  in  due  time  after  notice  omitted  to  remedy  it  or  to  give  needful 
warning  of  the  danger,  the  injured  traveler  himself  being  free  from  fault. 
I  am  clearly  of  the  opinion  that  this  case  was  for  the  jury  on  the  proof." 
Landon,  J.,  dissented. 

Though  constructed  with  a  step  at  a  change  of  grade. —  City  of  Chicago 
».  Blxby,  84  III.  82;  25  Am.  Kep.  429. 

Or  of  cobble  stones  laid  between  flat  stones  of  a  street  crosswalk. — 
Borough  of  Mauch  Chunk  v.  Kline,  100  Pa.  St.  119;  45  Am.  Rep.  364. 

But  where  one  was  Injured  by  falling  on  a  portion  of  a  city  sidewalk 
made  of  glass  and  iron  and  worn  smooth  and  slippery,  solely  In  conse- 
quence of  its  smoothnecs,  it  was  held  he  could  maintain  an  action  against 
the  city.— Cromarty  v.  City  of  Boston,  127  Mass.  329;  34  Am.  Rep.  381. 

So  where  bricks  in  the  sidewalk  were  sunken  so  tliat  a  pool  formed 
therein  and  froze.  —  McDonnell  v.  Philadelphia,  12  Pa.  Co.  Ct.  R.  072. 

While  ownership  alone  of  sidewalks  by  municipalities  may  render 
them  liable  for  injuries  caused  by  defects  therein,  control,  even  without 
ownership,  always  makes  them  liable.  — Shaunou  v.  Tama  City,  74  la.  22; 


314  MORE  THAN  ORDIXARY  CARE. 

[251]  Where  a  corporation  have  been  sued  and  have 
paid  damages  by  reason  of  the  contractor's  negligence  in 

36  N.  W.  Rep.  776;  Village  of  Mansfield  v.  Moore,  124  111.  133;  16  N.  E. 
Rep.  246;  Osborne  v.  Detroit,  32  Fed.  Rep.  36;  Chapman  u.  Milton,  31 
W.  Va.  384;  7  S.  E.  Rep.  22. 

Contributory  Negligence. —  Knowledge  of  the  defective  condition  of 
a  sidewalk  does  not  preclude  one  from  recovering  damages  for  injuries 
received  by  walking  over  it,  in  the  exercise  of  due  care. —  Maultby  v. 
Leavenworth  City,  28  Kan.  745;  McKenzie  v.  City  of  Northfleld,  30  Mint. 
456;  City  of  Bloomington  v.  Chamberlain,  104  111.  268;  Village  of  Clay. 
ton  V.  Brooks,  31  111.  App.  62;  37  N.  E.  Rep.  574;  City  of  Flora  v.  Nanej, 
31  111.  App.  493;  affirmed  in  26  N.  E.  Rep.  645;  Argus  v.  Sturgis,  86 
Mich.  344;  48  N.  W.  Rep.  1085;  City  of  Columbus  v.  Strassner,  124  Ind. 
482;  25  N.  E.  Rep.  65;  Corts  v.  District  of  Columbia,  7  Mackey,  277; 
City  of  Fort  Wayne  v.  Breese,  123  Ind.  581;  23  N.E.  Rep.  1038;  Langon 
v.  Atchison,  35  Kan.  318;  11  Pac.  Rep.  38;  Brennan  v.  St.  Louis,  92  Mo. 
482;  2  S.  W.  Rep.  481;  Ross  v.  Davenport,  66  la.  548;  City  of  Peoria  v. 
Walker,  47  111,  App.  182;  Dittrich  v.  Detroit,  98  Mich.  245;  57  N.  W. 
Rep.  125;  Smith  v.  Butler,  48  Mo.  App.  663 ;  City  of  Denison  v.  Sanford, 
2  Tex.  Civ.  App.  661;  21  S.  W.  Rep.  784;  Flynn  v.  Neosho,  114  Mo.  567; 
21  S.  W.  Rep.  903;  City  of  Sandwich  v.  Dolan,  141  111.  430;  31  N.  E. 
Rep.  416;  City  of  Kinsley  v.  Morse,  40  Kan.  577;  20  Pac.  Rep.  217.  (But 
a  degree  of  care  commensurate  with  the  known  risk  must  be  exercised 
by  the  traveler.— City  of  Ft.  Worth  v.  Johnson,  84  Tex.  137;  19  S.  W. 
Rep.  361;  Norwood  v.  Somerville,  159  Mass.  105;  33  N.  E.  Rep.  1108; 
Holloway  v.  Lockport,  7  N.  Y.  S.  Rep.  363;  Walker  v.  Vicksburg,  71  Miss. 
899;  15  3o.  Rep.  132;  Smith  v.  Cairo,  48  111.  App.  166;  Rally.  Manson, 
(.Iowa),  58  N.  W.  Rep.  881.) 

Even  after  dark.—  Maultby  v.  Leavenworth,  28  Kan.  745. 

Unless  its  condition  is  such  that  a  person  of  ordinary  prudence  would 
not  venture  upon  it. —  McKenzie  v.  Northfleld,  30  Minn.  456;  Hesser  w. 
Grafton,  33  W.  Va.  548;  11  S.  E.  Rep.  211. 

The  fact  that  one  is  blind  who  was  injured  by  falling  into  an  excava- 
tion when  walking  along  a  sidewalk  is  not  conclusive  evidence  of  neg- 
ligence.— Town  of  Salem  v.  Ciller,  76  Ind.  291. 

Or  infirm.-  Orange  City  v.  Brown,  27  Kan.  74.  See  City  of  Mt.  Vernon 
V.  Brooks,  39  111.  App.  426. 

Or  of  defective  vision. —  Davenport  v.  Ruckman,  37  N.  Y.  568.  See 
Brackenridge  v.  Fitchburg,  145  Mass.  160;  13  N.  E.  Rep.  457. 

But  it  is  otherwise  where  the  plaintiff  was  intoxicated  at  the  time  of 
receiving  the  injury.—  Lynch  v.  New  York,  47  Hun,  524;  McCracken  v. 
Markesan,  76  Wis.  499;  45  N.  W,  Rep.  323.  See  Ott  v.  Buffalo,  61  Hun, 
C24;  131  N.  Y.  594;  30  N.  E.  Rep.  67;  16  N.  Y.  S.  Rep.  1. 

And  where  one  knew  of  the  existence  of  a  hole  in  a  sidewalk  but  was 
prevented  by  a  blinding  snow-storm  from  seeing  it,  and  sidewalks  on  other 


SIDEWALKS CONTRIBUTORY    NEOLIGENCE.  315 

exe-  [252]  outing  the  work,  they  c:iii  recover  against 
him,  if    his  contract  with    them    expressly    or    impliedly 

firveta  In  the  direction  In  which  he  was  goln?  were  equally  unHsfe^  It 
wu  held  not  guilty  of  contributory  negligence. —  Aurora  v.  Dale,  90  III. 
46.     See  City  of  Onmha  v.  Ayer,  32  Neb.  375;  49  N.  W.  Rep.  445. 

But  where  plaintiff  l<new  that  a  walk  was  in  a  bad  condition  and  that 
on  account  of  the  darkness  it  was  imprudent  to  walk  over  it,  and  then; 
waA  another  walk  which  she  might  have  taken,  she  was  held  guilty  of 
contributory  negligence  in  using  the  unsafe  one. —  Parkhiil  v.  Town  of 
Brightou,  Gl  la.  103.  S.  P.,  McGinty  v.  Keokuk,  CG  la.  725.  But  see 
Flnnr.  Adrian,  93  Mich.  504;  53  N.  W.  Kep.  C14;  City  of  Richmond  v. 
Mulholland,  IIG  Ind.  173;   18  N.  E.  Rep.  832. 

And  where  one  attempted  in  the  dark  to  pass  an  open  cellar-way  in  a 
sidewalk  knowing,  but  at  the  time  forgetting,  its  existence,  he  was  held 
guilty  of  contributory  negligence  in  an  action  for  Injuries  sustained  by 
falling  into  it.  —  Hruker  r.  Town  of  Covington,  09  Ind.  J?3;  35  Am. 
Rep.  202. 

Mere  inattention  will  not  conclude  a  recovery.  — Maloy  v.  St.  Paul,  54 
Minn.  398;  5t;  N.  W.  Rep.  94;  Dundas  v.  Lansing,  75  Mich.  499;  42  N.  W. 
Uep.  1011.  But  deep  mental  abstraction  may,  where  knowledge  of  the 
defect  is  definite.  —  Walker  v.  Reidsville,  9G  N.  C.  382;  2  S.  E.  Rep.  74. 

Where  one  knew  of  the  existence  of  a  hole  in  a  sidewalk  and  there 

was  room  for  safe  passage,  but  no  sidewalk  on  the  otlier  side  of  the 

"ft,  it  was  held  that  he  was  not  necessarily  guilty  of  contributory  neg- 

•!ce  in  not  taking  another  route  when  injured  by  falling  into  the  Iiole 

lie  walking  along  the  sidewalk  at  night.  —  City  Council  of  Montgomery 
.  Wright,  72  Ala.  41 1 ;  47  Am.  Rep.  422. 

While  the  fact  that  one  could  have  gone  around  an  obstruction  or 
I'efect  in  the  sidewalk  instead  of  crossing  it  may  sometimes  be  sullicient 
proof  of  his  contributory  negligence  (Tp.  of  Crescent  r.  Anderson,  114 
Pa.  G43;  8  Atl.  Ri-f).  379;  Fulllara  v.  Muscatine,  70  la.  43G;  30  N.  W.  Rep. 
861;  McKelgue  v.  Janesvillc,  G8  Wis.  50;  31  N.  W.  Rep.  298;  City  of 
Altoona  p.  Loiz.  114  Pa.  St.  238;  7  Atl.  Rep.  240;  McCue  v.  Knoxville, 
146  Pa.  St.  680;  23  Atl.  Rep.  439;  Lynch  v.  Erie,  151  Pa.  St.  380;  2o  Atl. 
P^p.  43;  31  W.  N.  C.  G5;  Wright  v.  St.  Cloud,  54  Minn.  94;  65  N.  W. 
H'p.  819),  it  in  not  as  a  rule  conclusive.  — City  of  Sandwich  v.  Dolan,  34 
ri.  App.  199,  ulDrmed  in  24  N.  E.  Rep.  520,  sxtpra;  Ball  v.  El  Paso,  5  Tex. 
Civ.  App.  £21 ;  23  S.  W.  Rep.  835;  Ilartman  v.  Muscatine,  70  la.  511;  30 
N.  W.  n..'p.  85'.»,  Morehouse  v.  Dixon,  39  111.  App.  107. 

One  Vnowing  that  there  is  ice  on  a  sidewalk  is  not  necessarily  ncgll- 
6' at  in  aferapting  to  walk  over  it  in  the  day  or  night  time  and  he  i.s 
bouad  only  to  use  ordinary  care  and  prudence. —  Evans  v.  City  of  Utica, 
69  N.  Y.  IGG;  25  Atn.  Rep.  ICl ;  Dewire  v.  Bailey,  131  Mass.  1C9;  41  Am. 
Rep.  -.'19;  Pomfrey  v.  Saratoga  Springs,  104  N.  Y.  459;  11  N.  E.  R.-p.  43; 
McGuiuLis  r.  Worcester,  IGO  Mass.  272;  35  N.  E.  Rep.  1068;  Rlchaids  r. 


316  MORE  THAN  ORDINARY  CARE. 

bound  him  to     [253]     see  that  such  negligence  should  nol 
occur  (g).,  but  such  a   stipulation  does   not  exonerate  th( 

{g)  Shearman,  s.  142,  419. 


Oshkosh,  81  Wis.  22G;  51  N.  W.  Rep.  256;  Gilbert  v.  Boston,  139  Mass 
313;  31  N.  E.  Rep.  734. 

But  when  one  voluntarily  attempts  to  pass  over  a  sidewalk  of  a  cit} 
which  he  knows  to  be  dangerous  by  reason  of  ice  and  snow  which  he 
could  easily  have  avoided,  he  is  guilty  of  contributory  negligence. 
Schaefler  ».  City  of  Sandusky,  33  Ohio  St.  246;  31  Am.  Rep.  533;  Cityol 
Quincy  V.  Barker,  81  111.300;  25  Am.  Rep.  278;  City  of  Erie  w.  Magil), 
101  Pa.  St.  ;  47  Am.  Rep.  739;  Parker  v.  Springfield,  147  Mass.  391;  l'- 
N.  E.  Rep.  70;  Twogood  v.  New  York.  12  Daly,  220;  Cosneru.  Centerville. 
(Iowa*),  57  N.  W.  Rep.  636;  Kling  v.  Buffalo,  72  Hun,  541;  25  N.  Y.  S. 
Rep.  445;  Hausman  v.  Madison,  85  Wis.  187;  55  N.  W.  Rep.  167. 

Deviation  from  Highway.  —  An  action  cannot  be  maintained  for 
injuries  received  by  deviating  from  the  highway.—.-  Keys  v.  Village  of 
Marcellus,  50  Mich.  439;  45  Am.  Rep.  50;  City  of  Scranton  ».  Hill,  103 
Pa.  St.  378;  48  Am.  Rep.  211 ;  Larrabee  v.  Peabody,  128  Mass.  561;  Kel- 
ley  V.  Fond  du  Lac,  31  Wis.  179;  Drew  v.  Sutton,  55  Vt.  586;  45  Am.  Rep. 
644;  Kelly  v.  Columbus,  41  Ohio  St.  263;  Monmouth  v.  Sullivan,  80  111. 
App.  60;  Zettler  v.  Atlanta,  65  Ga.  195;  Ely  v.  Des  Moines,  86  Iowa,  55; 
52  N.  W.  Rep.  475;  Brennan  v.  New  York,  67  Hun, 648;  22  N.  Y.  S.  Rep. 
304;  Biggs  v.  Huntington,  32  W.  Ya.  55;  9  S.  E.  Rep.  51. 

But  there  is  no  rule  requiring  a  person  to  remain  in  the  usually  traveled 
portion  of  the  highway. — Ringelstein  v.  San  Antonio,  (Tex.  Civ.  App.J, 
21  S.  W.  Rep.  634. 

If  a  highway  is  rendered  impassable  and  there  is  no  other  way,  one 
may  pass  over  adjoining  lands.  —  Morey  v.  Fitzgerald,  56  Vt.  487.  It  is 
the  duty  of  a  pedestrian  knowing  the  defects  to  abandon  a  dangerous 
sidewalk.— Borough  of  Sandy  Lake  v.  Forker  (Pa.),  18  Atl.  Rep.  609. 

Whether  he  is  negligent  «n  doing  so  is  a  question  for  the  jury. — Ram- 
sey V.  Rushville,  8  Ind.  394.  See  Joyner  v.  Great  Barrington,  118  Mass. 
463;  Hart  V.  Red  Cedar,  63  Wis.  634. 

Where  a  plaintiff  stepped  off  the  street,  two  feet  on  adjacent  land  to  a 
hydrant  to  draw  water,  and  while  so  doing  with  one  foot  on  the  street 
and  one  foot  on  the  adjacent  land  was  injured  by  the  fall  of  roofing  neg- 
ligently allowed  to  stand  on  its  edge,  it  was  held  that  the  city  was 
liable.— Duffy  v.  City  of  Dubuque,  63  la.  171.  See  Gulline  v.  Lowell,  114 
Ma.<s.  491;  11  N.  E.  Rep.  723. 

Where  a  woman  in  the  exercise  of  due  care  fell  into  a  gully  twenty- 
eight  inches  deep,  close  by  the  sidewalk,  which  the  city  had  suffered  to 
exist  for  several  years  and  of  which  she  was  not  aware,  it  was  held  that 
the  city  was  liable  for  the  resulting  injuries.—  Halpin  v.  Kansas,  76  Mo, 
335. 


DEVIATION    FUOM    llUiHWAY NOTICK.  317 

c<)rix)nition  in  tho  tirnL     [254]     instance  (A),  unless,  per- 
haps (i),  if  they  made  it  absolutely  part  of  tho  work  to  be 

(0  Bower  v.  I'cato,  sujtra.  (i)  See  tho  Judinncnt  of  the  Court  in 

Bower  v,  reato,  tupra. 

And  a  city  may  be  liable  for  an  accident  caused  by  an  obstruction  in  a 
traveled  path,  Ix-tween  the  street  and  sidewalk,  if  such  path  is  penerally 
nsed  &s  one  ol  couvonlcnce  with  thi-  knowledj^e  and  implied  consent  of 
the  city. —  A.ston  V.  Newton,  K)4  Muss.  507. 

A  town  may  be  liable  for  injury  sustained  by  a  traveler  on  a  highway, 
by  driving  off  a  steep,  unfiuardeil  eniltaukment,  six  Inches  outside  the 
highway  in  the   dark,  the  highway  being  level  to  that  point. — Drew  v. 

Sutton,  65  Vt.  68(;, 

And  a  town  may  be  liable  to  one  injured  by  falling  into  an  excavation 
ia  a  lot  adjoining  a  sidewalk,  there  being  no  fence  or  barricade  between 
the  lot  and  the  sidewalk. —  Bunch  v.  Eilenton,  90  N.  C.  431. 

So,  where  an  elderly  woman,  unacquainted  with  the  street,  to  avoid  a 
crowd  stopped  to  the  inside  of  the  unprotected  walk  and  fell  Into  a  small 
vacant  space  between  two  abutting  buildinfis,  the  city  was  liable  for  her 
injury. — City  of   Kansas  City  v.  Manning,  60  Kan.  373;  31  Pac.  Kcp.  1104. 

But  It  ia  not  the  duty  of  a  city  to  provide  means  of  access  from 
private  property  to  its  streets. — Goodin  r.  Des  Moines,  55  la.  07  (plain- 
tiff followed  a  footpath  across  a  vacant  lot  and  fell  down  au  embankment 
into  a  street  which  had  been  recently  excavated.  S.  P.,  Mulvane  v. 
South  Topeka,  45  Kan.  45;  25  Pac.  Hep.  217. 

Ajid  't  is  not  bound  to  erect  barriers  to  prevent  travelers  from  stray- 
ing from  the  highway,  although  there  is  a  dangerous  place  twenty-eight 
feet  therefrom,  which  they  may  so  reach  by  straying. —  Daily  v.  Worces- 
ter, 131  Mass.  452.  But  the  rule  is,  that  the  highway  must  be  made  rea- 
sonably safe  for  travel. —  Hudson  v.  Marlborough,  154  Mass.  218;  28  N. 
E.  Rep.  147;  Flagg  v.  Hudson,  142  Mass.  280;  57  Am.  liep.  (;74. 

(Where  ahorse  lied  to  a  post  in  a  city  street  became  frightened,  broke 
away  and  ran  along  the  street  and  plunged  down  au  unfenced  precipice, 
crossing  a  street,  Impassable  except  by  a  stairway  for  foot  passengers, 
and  was  killed,  the  city  was  held  not  liable. —  Moss  v.  Burlington,  60  la. 
488;  40  Am.  Rep.  82.; 

Nor  is  it  bound  to  maintain  railings  about  areas  in  front  of  the  base- 
ment offices  and  shops  upon  the  streets. —  Beardsley  v.  Hartford,  30 
Conn.  52'3;  47  Am.  Rep.  G77;  contra,  Landrue  v.  Lund,  38  Minn.  538;  38 
N.  W.  Rep.  699. 

Notice. —  In  order  that  a  municipal  corporation  may  be  held  liable  for 
injuries  caused  by  defects  in  the  highway,  it  must  be  shown  to  have  had 
notice  of  the  defects,  express  or  implied. —  Noble  r.  Richmond,  31  Gra;t. 
•^71;  Hoey  p.  Natick,  153  Mass.  528;  27  N.  K.  Itep.  595;  City  of  Galveston 
V.  Smith,  80  Tex.  69;   15  S.  W.  Rep.  589;  McNally  v.  Cohoes,  53  Uuu,  202; 


318  MORE  THAN  ORDINARY  CARE. 

done  by  the  contract  that  a  par-  [255 J  ticukr  thing 
should  be    done,  which,  if  done,  would  render  the  whole 

6  N.  Y.  S.  Rep.  842;  Miller  v.  St.  Paul,  38  Minn.  134;  36  N.  W.  Rep.  271; 
Town  of  Rosedale  v.  Ferguson,  3  Ind.  App.  596;  30  N.  E.  Rep.  156;  Pott- 
ner  v.  Minneapolis,  41  Minn.  73;  42  N.  W.  Rep.  784. 

The  municipality  is  entitled  to  time  to  make  repairs  after  receiving 
notice  of  the  defect.— Fuller  v.  Jackson,  82  Mich.  480;  46  N.  W.  Rep. 
721;  Town  of  Montezuma  v.  "Wilson  (Ga.),  9  S.  E.Rep.  17;  Bingham  t). 
Boston,  161  Mass.  3;  36  N.  E.  Rep.  473;  Dittrich  v.  Detroit,  98  Mich. 
245;  67  N.  W.  Rep.  125.  But  see  Barr  v.  City  of  Kansas,  105  Mo.  550; 
16  S.  W.  Rep.  483. 

The  corporation  and  not  "passers-by  "  must  notice  such  defects  and 
repair  them.—  Squires  w.  Chillicothe,  89  Mo.  226;  1  S.  W.  Rep.  23; 
Mitchell  ».  Plattsburg,  33  Mo.  App.  555;  City  of  Joliet  u.  McCraney,  49 
111.  App.  381.  See  McGrail  v.  Kalamazoo,  94  Mich.  52;  53  N.  W.  Rep. 
956. 

Clf  the  defect  is  in  the  original  construction  or  from  the  direct  act  of 
the  corporation's  servants,  notice  is  unnecessary. —  Stein  v.  Council 
Bluffs,  72  la.  180;  33  N.  \V.  Rep.  455;  Golden  v.  Clinton,  54  Mo.  App. 
100;  City  of  Lincoln  v.  Calvert,  39  Neb.  305;  58  N.  W.  Rep.  115;  Lud- 
low V.  Fargo,  3  N.  D.  485;  57  N.  W.  Rep.  506;  Pool  v.  Jackson,  93  Tenn. 
02;  23  S.  W.  Rep.  57;  Adams  v.  Oshkosh,  71  Wis.  49;  36  N.  W.  Rep. 
014;  Hughes  V.  Fond  du  Lac,  73  Wis.  380;  41  N.  W.  Rep.  407;  Village 
of  Jefferson  v.  Chapman,  127  111.  438;  20  N.  E.  Rep.  33;  City  of  Austin  v. 
Kitz,  72  Tex.  391;  9  S.  W.  Rep.  884;  District  of  Columbia  v.  Woodbury, 
136  U.  S.  Rep.  450;  10  S.  Ct.  Rep.  990;  Buck  v.  Blddeford,  82  Me.  433; 
19  Atl.  Rep.  912;  Smith  u.  St.  Joseph,  42  Mo.  App.  392.) 

Where  a  sidewalk  had  been  repaired  a  day  before  the  plaintiff  was 
injured  by  a  defect  therein,  it  was  held  that  before  the  city  could  be  made 
liable,  it  must  appear  that  the  corporate  authorities  knew  of  it  or  that 
circumstances  existed  from  which  notice  could  be  reasonably  inferred 
(Boniue  v.  Richmond,  75  Mo.  437;  see  Whitney  v.  Lowell,  151  Mass. 
212;  24  N.  E.  Rep.  47);  and  in  another  case  it  was  held  no  error  to 
refuse  to  instruct  the  jury, that  if  the  defect  existed  but  one  day  prior  to 
tlie  accident,  the  city  was  not  liable  unless  it  had  actual  notice.—  Sheel  v. 
Appleton,  49  Wis.  125. 

But  knowledge  or  notice  may  be  inferred  from  the  character  of  the 
defect  or  the  length  of  time  it  has  existed. —  Evansville  v.  Wilter,  86  Ind. 
414;  Aurora  v.  Hillman,  90111.  61 ;  Porter  Co.  Com.  r.  Dombke,  94  luil. 
72;  City  of  Murphysboro  v.  O'Riley,  36  111.  App.  157;  Id.  v.  Baker,  34 
111.  App.  657;  Shipley  V.  Bolivar,  42  Mo.  App.  401;  McDonald  r.  Ashlaud, 
78  Wis.  251;  47  N.  W.  Rep.  434;  City  of  Sterling  v.  Merrill,  25  111.  App. 
596;  affirmed  124  111.  524;  17  N.  E.  Rep.  6;  Moon  v.  loni,  81  Mich. 
635;  46  N.  W.  Rep.  25;  City  of  Chicago  v.  Farrell,  27  111.  App.  526;  Town 
of  Wheaton  v.  Iladley,  30   111.   App.  564;  affirmed,  23  N.  E.  Rep.  422; 


MUNICIPAL    CORPORATIONS NOTICE.  319 

work  :i  perfectly  harmless  work,  and  such  thiiif^  was  not 
dune. 

city  of  Pliiladelphia  v.  Smith  (Pa.),  l^  Atl.  Rep.  493;  2;{  W.  N.  C. 
'.'i2;  Whitlk'ld  I).  Mfiiilian,  fJi)  Mi.ss.  570;  G  So.  Kip.  244;  Masters  r.  Troy, 
50  Hun,  48r>;  3  N.  Y.  S.  Hei).4o0;  Osborne  v.  Dt-troit,  32  Fi«l.  Hep.  37; 
Iloaston  r.  Isaacs  (Texas),  3  S.  W.  Kep.  CDS;  Woodard  v.  Boscobel,  84 
Wis.  226;  64  N.  \V.  Rep.  332;  Tucker  v.  Salt  Lake  City,  10  Utah,  173;  37 
Pac.  Rep.  201;  City  of  Ottowa  r.  Stricklin,  4.5  111.  App.  288;  Lynch  r. 
Buffalo,  27  N.  Y.  S.  Rep.  303;  G  Miss.  Rep.  583;  City  of  Abilene  v. 
Cow|»erthwait,  52  Kan.  324;  31  Pac.  Rep.  795;  Balls  r.  Woodward,  51 
Fed.  Rep-  •'^''';  Brownlee  v.  Alexi.s,  S9  111.  .Vpp.  135;  City  of  Newport  v. 
Miller.  'X\  Ky.  22;  18  S.  W.  Rep.  835;  City  of  Fort  Wayne  v.  Patterson, 
3  Ind.  App,  34;  29  N.  E.  Rop.  1G7. 

Where  the  city  has  suffered  a  sidewalk  built  without  its  authority  to 
remain  unsafe  for  a  year. —  Saulsbury  v.  Ithaca,  94  N.  Y.  27;  4C  Am.  Rep. 
112.    See  Alberts  v.  Vernon,  96  Mich.  549;  55  N.  W.  Rep.  1022. 

When  a  highway  was  in  a  dangerous  condition  for  two  weeks. — 
Smidr.  New  York,  49  N.  Y.  Superior  Ct.  12G;  Montfjomery  v.  Wright,  72 
Ala.  411;  P'oels  v.  Tonawauda,  75  Hun,  3G3;  27  N.  Y.  S.  Rep,  113. 

For  three  weeks.— Sullivan  v.  Ciiy  of  Oshkosh,  13  N.  W.  Rep.  4G8, 

Or  rendered  unsafe  by  an  excavation  (Brusso  r.  Buffalo,  90  N.  Y. 
679)  the  city  was  charp;ed  with  constructive  notice,  though  in  the  last 
cue  it  employed  a  contractor  to  do  the  work. —  Id. 

When  the  defect  had  existed  for  about  Ave  to  twenty  days  (City  of 
Griffln  r  Johnson,  84  Ga.  279;  10  S.  E.  Rep.  719),  or  Ave  or  six  weeks 
(City  of  Philadelphia  v.  Smith  (Pa),  16  Atl.  Rep.  493;  23  W.  N.  C. 
242),  ornine  d;iys  (Fortin  v.  Easthampton,  145  Mass.  196;  13  N.  E.  Rep. 
599;  or  four  days  (City  of  Ft.  Wayne  v.  Duryee,  9  Ind.  App.  620;  37 
N.  E.  Rep.  299),  or  ten  hours  (Parsons  v.  Manchester  (N.  H.),  27  Atl- 
Rep.  88),  or  three  to  twelve  days  (Naylor  v.  Mountain  Stone  Co.,  9  Utah, 
491;  35  Pac.  Rei>.  509),  or  three  days  (Town  of  Monticello  r.  Kenard 
(Ind.  App.),  34  N.  E.  Rep.  454),  notice  is  presumed.  But  shorter 
periods  of  time  have  been  held  to  be  insufljcient. —  Rochefort  v.  Attle- 
borough,  154  Mass.  140;  27  N.  E.  Rep.  1013;  Thei.ssen  v.  Belle  Plains,  81 
la.  118;  46  N.  W.  Rep.'854;  Burns  v.  Bradford,  137  Pa.  St.  361 ;  20  Atl. 
Rep.  997;  27  W.  N.  C.  201;  McPherson  v.  District  of  ColumI)ia,  7  Mackey. 
564;  Stoddard  i'.  Winchester,  154  Mass.  149;  27  N.  E.  Rep.  1014;  Reed 
r.  Detroit,  99  Mich.  204;  58  N.  W.  Rep.  44;  Butler  v.  Oxford,  69  Ml.ss. 
618;  13  So.  Rep.  626;  City  of  Warsaw  v.  Dunlap,  112  Ind.  576;  11  N.  E. 
Kep.  623;   14  N.  E.  Rep.  568. 

And  where  one  while  using  a  pump  on  a  city  street  fell  through  the 
pavement  which  was  laid  over  a  wooden  platform  owing  to  the  rotten 
condition  of  the  latter  and  was  injured  the  city  was  held  chargeable  with 
notice  of  the  defect,  it  having  been  shown  that  the  pump  had  not  been  re- 
paired for  nine  years.—  Sherwood  v.  District  of  Columbia,  3  Mackey,  276. 


320  MORE   THAN   ORDINARY    CARE. 

[256]  A  corporation  erected  baths  and  washhouses  under 
9  &  10  Vict.  c.  74.    The  affairs  of  the  baths,  &c.,  were  con- 

The  court  said  in  this  case :  "  Here  is  a  work  created  by  the  District, 
a  well  dug  and  excavated  in  a  highway  with  a  pump  in  it,  yielding  water 
for  domestic  purposes.  It  invites  the  inhabitants  of  the  neighborhood 
to  go  there  and  get  their  daily  supply.  The  citizens  had  no  notice  of  the 
rotten  platform  beneath  covered  as  it  was  by  an  imperishable  brick  roof. 
In  using  this  pump  they  had  a  right  to  expect  that  it  was  devised  with 
a  foundation  of  brick  or  material  as  imperishable.  Is  the  District  under 
the  law  chargeable  with  knowledge  of  the  condition  of  this  structure? 
They  put  it  there  and  they  covered  it  up;  they  dug  a  hole  thirty  feet  be- 
low it;  they  put  the  brick  upon  the  wood  with  the  knowledge  that  the 
latter  was  perishable.  They  ought  to  have  known  that  when  they  laid 
these  wooden  structures,  they  were  laying  something  certain  to  decay. 
And  although  bound  to  know  that  this  platform  was  liable  to  decay,  the 
District  made  no  examination  of  it  for  nine  years.  Here  was  a  complete 
mantrap  with  an  assurance  to  the  public  of  security.  We  hold  that 
the  knowledge  of  these  facts  was  all  the  notice  that  was  required  in  this 
case.  Where  a  city  constructs  a  thing  of  this  kind  it  becomes  its  duty 
to  watch  over  it  and  to  protect  it  or  abide  the  consequences." 

Notice  to  a  city  councilman  of  a  defect  in  a  street  of  the  city  is 
held  notice  to  the  city  (Carter  v.  Town  of  Monticello,  68  la.  178;  26  N. 
W.  Rep.  129) ;  although  the  councilman  is  not  at  the  time  engaged  In 
any  oflBcialact. —  City  of  Logansport  v.  Justice,  74  Ind.  378;  39  Am.  Rep. 
79. 

And  knowledge  of  an  alderman  of  an  obstruction  near  his  place  of  resi- 
dence in  a  public  street  is  notice  to  the  city. —  Mayor,  etc.,  of  Knoxville 
V.  Bell,  12  Lea,  157.  B.  P.,  Cantwell  v.  Appleton,  71  Wis.  463;  37  N.  W. 
Rep.  813;  McKeigue  v.  Janesville,  68  Wis.  50;  31  N.  W.  Rep.  298.  See 
City  of  Bonham  v.  Crlder  (Tex.  Civ.  App.),  27  S.  W.  Rep.  419. 

Knowledge  of  a  policeman  of  an  obstruction  in  a  street  is  notice  to 
the  city  when  the  police  are  charged  with  the  duty  of  removing  nui- 
sances from  the  streets.— Rehberg  v.  Mayor,  etc.,  of  New  York,  91  N.  Y. 
137;  43  Am.  Rep.  657.  S.  P.,  Looney  v.  Joliet,  49  111.  App.  621;  City  of 
Denver  v.  Deane,  10  Colo.  375;  16  Pac.  Rep.  30. 

Notice  to  a  highway  surveyor  though  he  did  not  have  charge  of  that 
part  of  the  ward  in  which  the  defect  was  located  is  notice  to  the  city.— 
Rogers  v.  Shirley,  74  Me.  144. 

Notice  to  one  employed  to  look  after  the  streets  (Smith  v.  Des  Moines, 
85  la.  725;  51  N.  W.  Rep.  77;  Chase  v.  Lowell,  151  Mass.  422;  24  N.  E. 
Rep.  212),  or  a  city  engineer  (Toledo  Con,  St.  R.  Co.  v.  Sweeney,  8  Ohio 
CIr.  Ct.  Rep.  298),  or  a  village  marshal  (Edwards  v.  Three  Rivers,  96 
Mich.  625;  55  N.  W.  Rep.  1003),  or  an  inspector  of  wires  (Bourget  v 
Cambridge,  159  Mass.  388;  34  N.  E.  Rep.  455),  or  a  street  overseer 
(Bradford  v.  Anniston,  92  Ala.  349;  8  So.  Rep.  683),  or  village  trustees 


MUNICIl'AL  COKl'OKATIONS SIDEWALKS EVIDENCE.       321 

diu'teil  [S.'iT]  l>y  a  committee,  consisting  of  some  of 
tho  members  of  the  corporation.     The  plaintiff  was  injured 

(Whipple  V.  Fair  Haven,  G3  Vt.  221;  21  Atl.  Ilep.  533),  Is  sulDcient  notice 
to  the  corporation. 

8o  notice  to  a  street  commissioner  or  member  of  common  council 
(City  of  Lafayette  17.  Larson,  73  Md.  307;  McSherry  u.  Canaiululgiia,  69 
Hau,  61(5;  12  N.  Y.  S.  Kep.  751;  Fuller  v.  Jaclison,  82  Mich.  480;  4G  N. 
W.  Rep.  721;  City  of  Columbia  v.  Strassner,  124  Ind.  482;  26  N.  E.  liep. 
05;  Trapncll  r.  Red  Oak  Junction,  70  la.  744;  39  N.  W.  Rep,  884);  to 
Uie  mayor  and  city  marshal  (City  of  Salina  i».  Trosper,  27  Kan.  544);  Is 
uotice  to  the  city.  But  knowledge  by>  janitor  of  a  public  school-house 
appointed  by  a  school  committee  of  the  city  that  a  coal  hole  in  the  side- 
walk in  front  of  the  school  house  is  uncovered  is  not  notice  to  the  city. — 
Foster  r.  Boston,  127  Mass.  290.  The  question  of  notice  is  frequently 
lor  the  jury. —  Kunkel  v.  Chicago,  37  111.  App.  325;  Fox  v.  Lansingl)urg, 
59Hun,  r,17;  13  N.  Y.  S.  Rep.  174;  Troxel  r.  Vinton,  77  la.  90;  41  N. 
W.  Rep.  580;  Kirk  ».  Homer,  77  Hun,  459;  28  N.  Y.  S.  Rep.  1009;  Davis 
r.  Corry,  154  Pa.  St.  598;  26  Atl.  Rep.  C21;  32  W.  N.  C  346;  Lamberts. 
Pembroke  (N.  11.),  23  Atl.  Rep.  81;  City  of  Ft.  Worth  t).  Johnson,  84 
Tex.  137;   19  S.  W.  Rep.  361. 

Bvldence. —  In  an  action  against  a  municipal  corporation  to  recover 
damages  for  injuries  caused  by  a  defective  sidewalk  which  was  in  an  un- 
guarded condition,  it  is  competent  for  the  plaintiff  to  show  that  while  it 
waa  in  that  condition,  other  like  accidents  had  occurred  at  the  same 
j'lace. —  District  of  Columbia  v.  Armes,  107  U.  S.  519;  Qulnlan  v.  City  of 
Utlca,  74  N.  Y.  603;  City  of  Chicago  v.  Powers,  42  HI.  169;  Augusta  v. 
Ilafers,  61  Ga.  48;  House  r.  Metcalf,  27  Conn.  631;  Calkins  v.  City  of 
Hartford,  .S3  Id.  57;  Darling  v.  Westmoreland,  52  N.  H.  401;  Hill  v. 
Portland,  etc.,  R.  Co.,  55  Me.  438;  Kent  v.  Tovra  of  Lincoln,  32  Vt.  591; 
City  of  Delphi  v.  Lowery,  74  Ind.  620;  Lombaru.  East  Tawas,  86  Mich. 
14;  48  N.  W.  947;  Gilmer  v.  Atlanta,  77  Ga.  688;  City  of  Goshen  v. 
England,  119  Ind.  368;  21  N.  E.  Rep.  977;  Magee  v.  Troy,  1  N.  Y.  S.  Rep. 
24;  Pomfrey  v.  Saratoga  Springs,  104  N.  Y.  459;  11  N.  E.  Rep.  43; 
Osborne  v.  Detroit,  32  F"ed.  Rep.  36;  City  of  Bloomington  r.  Legg,  151 
111.  9;  37  N.  E.  Rep.  690;  Golden  v.  Clinton,  54  Mo.  App.  100;  Smith  v. 
Des  Moines,  85  la.  725;  51  N.  W.  Rep.  77;  contra,  Richards  r.  Oshkosh, 
81  Wis.  226;  61  N.  W.  Rep.  266;  Mathews  v.  Cedar  llapids,  80  la.  459;  45 
N.  W.  Rep.  894:  nor  where  the  time  is  too  remote.  —  Barretts.  Ham- 
mond, 87  Wis.  654;  58  N.  W.  Rep.  1053;  Neal  v.  Boston,  160  Mass,  518; 
36  N.  E.  Rep.  808. 

It  is  not  competent  for  the  city  to  show  that  no  accident  had  previ- 
oasly  happened  in  the  same  place.  —  Marvin  v.  New  Bedford,  158  Mass. 
464:  33  N.  E.  Rep.  605.     But  see  Smith  v.  Gilman,  38  111.  App.  393. 

Evidence  of  subsequent  injuries  to  others  at  the  same  place  is  not 
admissible. —  McGrail  v.  Kalamazoo,  94  Mich.  52;  53  N.  W.  Eep.  965, 


322  MORE  THAN  ORDINARY  CARE. 

by  reason  of  the  [258]  improper  construction  of  a 
drying  machine,  and  it  was  held  the  corporation  was  the 
proper  party  to  be  sued  (Jc). 

(k)  Cowley  v.  Sunderland.  6  H.  &  N.  565;  30  L.  J.  Ex.  127. 

Evidence  of  the  general  condition  of  the  street  or  sidewalk  in  the 
vicinity  of  the  place  where  the  injury  occurred  is  admissible.  —  Aryman 
V.  Marshalltown  (Iowa),  57  N.  W.  Rep.  867;  Masters  v.  Troy,  60 
Hun,  485;  3  N.  Y.  S.  Rep.  450;  City  of  Atchison  v.  Rose,  43  Kan.  605; 
23  Pac.  Rep.  561;  Dundas  v.  Lansing,  75  Mich.  499;  42  N.  W.  Rep.  1011; 
Armstrong  v.  Ackley,  71  la.  76;  32  N.  W.  Rep.  180;  Munger  v.  Waterloo, 
83  la.  559;  49  N.  W.  Rep.  1028;  Smith  v.  Des  Moines,  85  la.  725;  51  N. 
W.  Rep.  77;-  Shaw  v.  Sun  Prairie,  74  Wis.  105;  42  N.  W.  Rep.  271;  Guele 
V.  Mankato,  30  Minn.  256;  39  Am.  Rep.  98;  City  of  Topeka  v.  Sherwood, 
39  Kan.  690;  18  Pac.  Rep.  933;  O'Neil  v.  West  Branch,  81  Mich.  544;  45 
N.  W.  Rep.  1023;  Osborne  v.  Detroit,  32  Fed.  Rep.  36;  McConnell  v. 
Osage,  80  la.  293 ;  45  N.  W.  Rep.  550.  Contra,  City  of  Streatbr  v.  Hamil- 
ton, 49  111.  App.  449;  Dundas  v.  Lansing,  75  Mich.  499;  42  N.  W.  Rep. 
1011;  Bowles  v.  Kansas  City,  51  Mo.  App.  416;  Goodson  v.  Des  Moines, 
66  la.  255. 

In  Lindsay  v.  City  of  Des  Moines,  (68  la.  368;  26  N.  W.  Rep.  583),  it  was 
held  that  the  care  and  diligence  required  of  a  city  in  keeping  its  side- 
walks clear  of  snow  and  ice,  and  in  proper  condition,  cannot  be  affected 
or  varied  by  the  number  of  miles  of  walks  therein,  and  it  is  error  to  give 
evidence  as  to  the  extent  of  such  walks,  or  to  instruct  the  jury  that  they 
may  consider  the  extent  of  sidewalk  which  the  city  has  to  look  after. 
The  court  say :  "  In  view  of  a  new  trial  it  is  proper  to  say  that  we  think 
the  court  should  not  have  allowed  the  defendant  to  prove  that  there  are 
over  150  miles  of  sidewalk  in  the  city  of  Des  Moines ;  and  the  jury  ought 
to  have  been  instructed  that  the  *  extent  of  sidewalk  in  the  city  which  has 
to  be  looked  after  may  be  considered'  in  deciding  whether  the  city 
officers  used  proper  diligence  in  removing  the  snow  and  ice.  It  appears  to 
us  that  the  care  and  diligence  required  to  keep  sidewalks  in  proper  con- 
dition cannot  be  affected  or  varied  by  the  number  of  miles  of  walks  in 
the  city.  If  labor  is  necessary  for  the  purpose,  the  force  should  be  com- 
mensurate with  the  work  to  be  done.  In  other  words,  a  city  with 
40,000  inhabitants  and  150  miles  of  sidewalk,  should  be  held  to  the  same 
degree  of  care  in  this  respect  as  the  smaller  towns  with  less  extent  of 
sidewalk."  The  case  was  reversed  mainly  on  the  ground  that  it  was 
error  to  refer  the  jury  to  the  pleadings  to  determine  the  issues. 

In  an  action  against  a  city  for  an  injury  caused  by  a  defective  side- 
walk, a  record  of  the  proceeding  of  the  council  after  the  accident,  con- 
taining an  order  to  the  engineer  to  examine  the  walk  and  report  a  remedy 
is  held  admissible,  to  show  that  the  city  considered  the  walk  defective, 
and  one  that  it  was  bound  to  repair. —  Lafayette  v.  Weaver,  92  Ind.  477. 


DIHECTOKS    OF    PLULIC    COMPANIKS.  328 

[259]  Tho  party  bringing  an  action  of  negligence  for 
the  breach  of  a  statutory  duty  must  show  that  the  duty 
was  [260]  imposed  for  his  benefit,  ami  that  he  has  an 
interest  in  its  due  performance  (/). 

And  where  a  statute  imposes  a  duty  to  prevent  a  partic- 
ular mischief,  a  person  cannot  make  the  neglect  of  such 
duty  the  foundation  of  an  action  in  respect  of  injuries 
of  a  different  character  to  those  contemplated  by  the 
statute  ( )n  ) . 

Section  VII. 

Neglect  of  Duties  by  Directors  of  Public  Companies. 

Directors  of  a  company  are  agents  and  in  some  respects 
tiio  trustees  of  the  company  and  its  shareholders,  and  the 
company  as  principal  is  responsible  for  their  acts  just  as 
in  the  ordinary  case  of  principal  and  agent  (n).     But  the 

(0  Strong  r.  Campbell,  11  Barb.  i:«.  («)  Barwick  v.  English  Joint   Stock 

(m)  Gorrls  r.  Scott,  L.  K.  9  Ex.  125.  Bank,  L.  R.  2  Ex.  259;  36  L.  J.  Ex.  147; 

Proximate  Cause. —  While  plaintifiE  while  in  the  exercise  of  clue  care 
stepped  into  a  hole  left  in  the  sidewalk,  and  was  thereby  unavoidably 
tbrown  on  a  railroad  truck,  and  in  attempting;  to  get  up  caught  his  clothes 
on  a  spike,  and  betore  he  could  extricate  himself  was  struck  by  a  passing 
train  and  killed,  it  was  held  that  the  city  was  liable. —  Chicago  v.  Schmidt, 
107  111.  18G. 

Where  the  horse  of  a  traveler,  being  frightened  by  the  overturn  of  his 
wagon  by  a  defect  in  the  highway,  escaped  from  him,  ran  ninety  rods  and 
collided  with  another  traveler,  it  was  held  that  the  injury  of  the  latter 
might  be  the  natural  and  probable  consequence  of  the  defect  for  which 
the  town  was  liable.—  Merrill  v.  Claremout,  58  N.  H.  4(18. 

Bot  where  one  tripped  upon  a  stone  improperly  in  the  highway,  and 
fell  Into  a  cellar  which  he  maintained  as  a  nuisance,  it  was  held  that  the 
town  was  liable  only  for  the  Injury  sustained  from  the  tripping,  and  not 
tor  that  caused  by  falling  into  the  cellar.—  Lavery  v.  Manchester,  58  N. 
H. 444. 

In  Gaudin  v.  Carthage  (59  Hun,  CIO;  12  N.  Y.  S.  Ttep.  790);  Johnson 
«.  Philadelphia  (139  Pa.  St.  G46;  21  Atl.  Kep.  31(1;  27  W.  N.  C.  41.') ;  and 
I  District  of  Columbia  v.  Washington  Gaslight  Co.  (20  D.  C.  39),  the 
cause  was  held  to  be  too  remote.     See  ante,  pp.  31  et  seq. 


324  MORE  THAN  ORDINARY  CARE. 

agent  is  also  personally  responsible  for  his  own  negligence, 
and  directors  of  companies  are  frequently  sought  to  be 
[261]     made  responsible  for  fraud,  misrepresentation,  or 

Wilson  r.  Lord  Bury,  5  Q.  B.  D.  527,  per  2  Ch.  77 ;  Ex  parte  Larkin,  4  Ch.  D.  666. 
Brett,  L.  J.  rFergnson  v.  Wilson?  L.  R. 


(n)  Angell  &  Ames  on  Corp.,  lOth  ed.,  §§  297-303. 

In  this  country  the  directors  of  a  corporation  occupy  a  fiduciary  re- 
lation. They  are  trustees  and  agents  oi  the  company  and  its  stock- 
holders.—  European,  etc.,  R.  Co.  v.  Poor,  59  Me.  277;  Butt  v.  Wood,  38 
Barb.  188;  Bank  v.  Downey,  53  Cal.  463;  Hoyle  v.  Plattsburgh,  etc.,  R. 
Co.,  54  N.  Y.  314;  Bent  u.  Priest,  86  Mo.  475;  25  Am.  Law  Reg.  115; 
Plaquemines  Tropical  Fruit  Co.  v.  Buck,  52  N.  J.  Eq.  219;  27  Atl.  Rep. 
1094;  United  Soeiety  of  Shakers  u.  Underwood,  9  Bush,  614;  Briggs  v. 
Spaulding,  141  U.  S.  147;  11  Sup.  Ct.  Rep.  924. 

"  Directors  are  not  express  trustees.  *  *  *  They  are  mandatories. 
They  are  agents.  They  are  trustees  in  the  sense  that  every  agent  is  a 
trustee  for  his  principal,  and  bound  to  exercise  diligence  and  good 
faith."— Wallace  v.  Lincoln  Sav.  Bank,  89  Tenn.  630;  15  S.  W.  Rep.  453. 
But  see  Marshall  v.  Farmers'  &  M.  S.  Bank,  85  Va.  676;  8  S.  E.  Rep.  590. 

And  as  such  are  governed  by  the  same  rules  applicable  to  trustees 
and  agents.— Robinson  v.  Smitli,  3  Paige  Ch.  322 ;  Wardell  v.  Railroad  Co., 
103  U.  S.  657;  Jones  v.  Morrison,  31. Minn.  140;  Bliss  w.  Matteson,  45 
N.  Y,  22;  see  Citizens  Bid.,  etc.,  Ass.  v.  Coriell,  7  Stew.  Eq.  383;  Sper- 
ing's  Appeal,  71  Pa.  St.  1;  Williams  v.  McKay,  40  N.  J.  Eq.  197;  Hun 
u.  Cary,  82  N,  Y.  65;  Horn  Silver  Min.  Co.  v.  Ryan,  42  Minn.  196;  44  N. 
W.  Rep.  56. 

(o)  In  this  country  the  directors  of  a  corporation  are  trustees  for  Its 
creditors  and  upon  that  theory  they  are  held  liable  for  preferring  partica- 
lar  creditors  of  an  insolvent  corporation. —  Richards  v.  New  Hampshire 
Ins.  Co.,  43  N.  H.  263. 

For  fraudulently  diverting  the  company's  assets  from  its  creditors.  — 
Id. 

And  for  fraudulent  representations  inducing  the  purchase  of  shares.  — 
Wakeman  v.  Dalley,  51  N.  Y.  127;  Thompson's  Liability  of  Officers  and 
Agents  of  Corporations,  p.  401,  §  25. 

Bank  directors  are  liable  as  trustees  to  depositors.  —  Delano  o.  Case, 
17  111.  App.  531 ;  12  N.  E.  Rep.  676.  See  Giddings  v.  Baker,  80  Tex.  308; 
16  S.  W.  Rep.  33. 

Under  various  State  statutes  they  are  liable  for  debts  contracted  be- 
fore the  organization  of  the  corporation,  for  contracting  indebtedness  in 
excess  of  prescribed  limits,  for  declaring  dividends  when  there  is  do 
surplus. —  Thompson's  Liability  of  Officers  and  Agents  of  Corpora- 
tions, Ch.  IV. 


DIRECTORS   OF   PUBLIC    COMPANIES.  325 

neMi<?cnce  where  the  company  is  insolvent,  but  the  directors 
are  persons  of  substance.  Directors  arc  not  liable  as  aj^cnts 
to  straugors  dealing  with  the  conipuny  })y  way  f)f  contract 
or  otherwise;  the  C()nii)any  with  w'houi  the  contract  is  made 
is  the  party  liable  to  be  sued  (o).  There  can  be  no  doubt, 
I  think,  that  they  ought  to  show  more  than  ordinary  care 
towards  the  shareholders,  for  they  are  persons  holding 
themselves  out  as  capable  of  directing  complicated  affairs, 
and  inviting  persons  to  trust  their  money  to  the  company 
which  they  ])rofess  to  direct ;  but  I  do  not  find  any  authority 
for  such  proposition.  They  arc  unlike  trustees,  who  un- 
dertake irksome  duties  for  no  pay  or  advantage,  for  they 
are  always  either  paid  or  deriving  some  benefit  or  advau- 
[262]  tage  from  their  position.  There  are  numerous 
reported  cases  of  actions  against  directors  for  misrepresen- 
tation or  fraud  ;  but  it  sometimes  happens  that  the  miscon- 
duct complained  of  may  fall  short  of  fraud,  but  yet  may  be 
a  breach  of  duty  for  which  au  action  will  lie  Q>). 

(o)  Wilson  r.  Lord  Bnry,  5  Q.  B.  D.      Ship  v.  CroBeklll,  L.  R.  10  Eq.  73;  Over- 
US,  527,  per  Brett,  L.  J.;  [sec  infra],  end,  Garncy  &  Co.  v.  Gurnoy,  L.  H,  lUh. 
(p)  Stewart  v.  Austin,  L.  U.  3  Kq.  299;      7ul ;  [see  wi/nij. 

(p)  The  rule  as  to  the  decree  of  care  to  be  exercised  by  directors  in 
the  manaf^ement  of  the  affairs  of  the  corporation,  Is  stated  In  Ackerraan 
V.  Ilalsey,  10  Stew.  (N.  J.)  Eq.  35G,  where  it  is  said :  — 

•'  For  any  willful  breach  of  trust,  or  misapplication  of  the  corporate 
funds,  or  for  any  gross  neglect  or  inattention  to  their  official  duties, 
•Urectors  are  liable. —  Field  on  Corp.,  §  173;  Anp.  &  Ames  on  Corp., 
§312;  Citizen's  Loan  Association  v.  Lyon,  2  Stew.  Eq.  110;  Robinson 
V.  Smith,  3  Paige,  222;  Citizen's  Bid.  A.ssociation  v.  Coriell,  7  Stew.  Eq. 
383;  IJrincl<erhoff  v.  Bostwick,  88  N.  Y.  52;  Trustees  v.  Boisselux,  3 
Fed.  Kep.  8i7;  4  IlughfS, 398;  London  Trust  Co  v.  MacKenzie,  3  Reports, 
597;  02  Law  J.  Ch.  870;  G8  Law  T.  380. 

"  As  a  general  rule  tlie  directors  of  a  corporation  are  only  required 
in  the  management  of  its  affairs  to  keep  within  the  limits  of  Its  powers 
and  to  exerci.se  good  faith  and  honesty.  They  only  undertake  by  virtue 
of  their  assumption  of  the  duties  Incumbent  on  them  to  perform  those 
duties  according  to  the  best  of  their  judgment  and  with  reasonable  dill, 
gence  and  a  mere  error  of  judgment,  will  not  subject  them  to  personal 
liability  (or  its  consequences.     And  unle-^^s  there  has  been  some  violation 


326     »       MORE  THAN  ORDINARY  CARE. 

There  seems  to  have  been  some  difficulty  upon  the  ques- 
tion how  far  a  bill  in  equity  would  lie  against  a  director, 

of  the  charter  or  the  contracting  instruments  of  the  company  or  unless 
there  is  shown  to  be  a  want  of  good  faith  or  a  willful  abuse  of  discretion 
or  negligence,  there  will  be  no  personal  liability.  They  are  personally 
only  bound  in  the  management  of  the  affairs  of  the  corporation  to  use 
reasonable  diligence  and  prudence,  such  as  men  usually  exercise  in  the 
management  of  their  own  affairs  of  a  similar  nature. —  Field  on  Corp., 
§§  169,  171;  Ang,  &  Ames  on  Corp.,  §  314;  Spering's  Appeal,  71  Pa.  St. 
1;  Citizen's  Bid.  Ass.  u.  Coriell,  7  Stew.  Eq.  383.  But  they  are  personally 
liable  if  they  suffer  the  corporate  funds  or  property  to  be  wasted  by 
gross  negligence  and  inattention  to  the  duties  of  their  trust. —  Robinson 
V.  Smith,  supra;  Citizen's  Bid.  Ass.  v.  Coriell,  supra.^'' 

In  the  case  last  cited,  the  managers  or  directors  of  a  building  associa- 
tion were  held  liable  for  losses  from  loans  made  on  insufficient  securities, 
but  not  for  losses  resulting  "from  an  honest  mistake  in  estimating  the 
value  of  stockholder's  lands  on  which  they  loaned  money,  nor  for  a  defect 
in  the  acknowledgment  of  a  mortgage  which  rendered  it  worthless." 

The  court  said:  "These  directors  served  without  pay;  they  were 
selected  by  their  fellow-stockholders  to  manage  gratuitously  the  affairs 
of  the  association  in  which  they  and  the  other  stockholders  were  jointly 
interested.  To  apply  to  them  the  strict  rules  which  are  applicable  to 
trustees  who  assume  the  discharge  of  the  duties  of  private  trusts  would 
be  unjust.  In  the  absence  of  fraud,  and  where  they  have  neither  derived 
nor  expect  to  derive  any  profit  or  advantage  from  their  management 
which  was  not  common  to  the  other  stockholdei's ;  when  they  have  acted 
fairly  and  have  not  been  guilty  of  gross  neglect  or  gross  inattention,  they 
should  not  be  held  liable.  The  rule  applicable  to  mandatories,  is  suflS. 
ciently  stringent  for  such  cases,  and  is  a  reasonable  one.  They  should  be 
held  liable  only  in  case  of  fraud,  gross  negligence,  or  misuser." 

So  in  another  case  (Spering's  Appeal,  71  Pa.  St.  1),  it  was  held  that 
directors  of  a  corporation  were  not  responsible  to  stockholders  for  losses 
happening  through  their  mismanagement  where  they  had  used  ordinary 
diligence  and  acted  with  good  faith.  The  court  said :  "  They  can  only  be 
regarded  as  mandatories  —  persons  who  have  gratuitously  undertaken  to 
perform  certain  duties,  and  who  are,  therefore,  bound  to  apply  ordinary 
skill  and  diligence,  but  no  more." 

And  in  another  case  (Hodger  v.  New  England  Screw  Co.,  1  R.  I.  312), 
it  was  said :  — 

"In  considering  the  question  of  the  personal  responsibility  of  the 
directors,  we  shall  assume  that  they  violated  the  charter  of  the  Screw 
Company.  The  question  then  will  be,  was  such  violation  the  result  of 
mistake  as  to  their  powers,  and  if  so,  did  they  fall  into  the  mistake  from 
want  of  proper  care,  such  care  as  a  man  of  ordinary  prudence  practices 
in   his  own  affairs.     For  if  the  mistake  be  such,  as  with  proper  care 


IMUI'.CTOliS    OF    I'UHLIC    CO.MI'AMK.S.  327 

unless  for  that  crassa  negligenlia  which  CMiuity  rci^'ardi'd  us 
c<iuivalent  to  fraud  (7);  but  in  a  hitcr  case  tlio  Lord  Chan- 
cellor suiil :  "  I  certaiidy  never  intended  to  h>y  down  ( in  Tur- 
(jiiand  V.  Marshall)  the  strong  proposition  that  a  person 
aotinix  for  another  as  his  ajrent  is  not  bound  to  use  all  the 
ordinary  prudence  that  can  be  properly  and  legitimately  ex- 
pected from  any  person  in  the  conduct  of  the  affairs  of  the 
world,  viz.,  the  same  amount  of  prudence  which  in  the 
same  circumstances  he  would  exercise  on  his  own  be- 
half." (r).  I  presume  that  this  would  ))e  ordinary  care  ; 
hut  there  arc  in  the  same  judgment  many  allusions  to 
crassa  negligentia,  which  would  seem  to  show  that  some- 
thing less  than  ordinary  care  is  all  that  is  required.  It  is, 
however,  extremely  difficult  to  deal  with  such  terms  as 
crassa  negligentia  used  by  any  judge,  unless  we  are  in- 
formed what  his  particular  views  are  with  respect  to  that 
[263]  phrase.  If  crassa  negligentia  means  that  the  person 
guilty  of  it  has  been  reckless  and  careless  in  an  extraordi- 
nary [2')4]  degree,  it  means  one  thing;  but  if  it  means 
that  the  person  pretends  to  skill,  and  has  only  exercised 
ordinary  care,  it  means  quite  another  thing. 

The  liquidator  of  a  company  may,  it  seems,  sue  the  com- 
pany for  negligence,  where  the  directors  have  made  reck- 
less advances,  &c.  {s). 

Wharton,  in  his  learned  work  on  Negligence,  says  {t): 
'•  Whatever  1)0  the  consideration  which  induces  a  person  to 
undertake  the  controlof  another's  affairs,  he  is  required,  if 
there  is  confidence  bestowed  and  accepted,  to  show  the  dili- 

(fl)  Tarqiiand  v.  Marshall,  L.  R.  4  Ch.  (s)  Weatcrn  ISank  v.  Donglas.  Court 

S76;  Overcnd,  Garncy  &  Co.  v.  Gurney,  of  Sess.  22D.  447:24D.  &i9. 
fpra.  (I)  Wharton  on  Negligence,  Book  II. 

(r)  Overend,  Gurney  &  Co.  r.  Gibb,  b.  510. 
L.  K.  B  Kng.  &.  Ir.  480. 

might  have  been  avoided,  they  ought  to  be  liable.  If,  on  the  other  hand, 
the  mistake  be  such  as  the  directors  might  well  make,  notwithstanding 
the  exercise  of  proper  care,  and  if  they  acted  in  good  faith  and  for  the 
benefit  of  the  Screw  Company,  they  ought  not  to  be  liable." 


328  MORE  THAN   ORDINARY    CARE. 

gence  a  good  maa  of  business  is  accustomed  to  show  in  the 
exercise  of  such  a  trust.  A  man  holding  himself  out  to  the 
public  as  a  business  man,  capable  of  properly  acting  as  a 
bank  director,  is  liable  for  culpa  levis  in  not  showing  the 
diligence  a  good  bank  director  should.  What  this  dili- 
gence is,  is  of  course  determined  in  part  b}""  the  charter  of 
the  bank,  in  part  by  general  commercial  law,  in  part  by 
business  usage  "  {u). 

Lord  Romilly,  in  giving  judgment  in  Turquand  v.  Mar- 
shall (a;),  said  :  '*  I  am  also  of  opinion  that  the  other  direct- 
ors, who  may  not  have  examined  the  books,  must  be  taken 
[265]  to  be  liable  for  all  the  consequences  which  would 
properly  flow   from  the    fact  if  they  had  been  acquainted 

(«)  The  learned  author  cites  Percy  v.  {x)  Turqaand  v.  Marshall  (L.  E.  6  Eq. 

MiUandon  (8  Martin,  68)  as  an  atthority,  112,  130),  was  reversed  on  other  points, 

but  this  case  scarcely  puts  the  duty  so  L.  R.  4  Ch.  376. 
high. 

(w)  The  court  in  this  case  (Percy  v.  Millandon,  8  Mart.  N.  S.  (La.) 
68),  said:— 

"  The  directors  of  banks  from  the  nature  of  their  undertaking  fall  within 
the  class  of  cases  where  ordinary  care  and  diligence  only  are  required. 
It  is  not  contemplated  that  they  should  devote  their  whole  time  and  atten- 
tion  to  the  institution  to  which  they  are  appointed  and  guard  it  from 
injury  by  constant  superintendence.  Other  ofBcers,  on  whom  compensa- 
tion is  bestowed  for  the  employment  of  their  time,  in  the  affairs  of  the 
bank,  have  the  immediate  management.  In  relation  to  these  ofiQcers, 
the  duties  of  directors  are  those  of  control,  and  the  negligence  which  would 
render  them  responsible  for  not  exercising  that  control  properly  must 
depend  on  circumstances  and  in  a  great  measure  be  tested  by  the  facts  of 
the  case.  If  nothing  has  come  to  their  knowledge  to  awaken  suspicion 
of  the  fidelity  of  the  president  and  cashier,  ordinary  attention  to  the 
affairs  of  the  institution  is  sufficient.  If  they  become  acquainted  with 
any  fact  calculated  to  put  prudent  men  on  their  guard,  a  degree  of  care 
commensurate  with  the  evil  to  be  avoided  is  required,  and  a  want  of  that 
care  certainly  makes  them  responsible."  Bank  directors  are  not  required 
to  exercise  constant  vigilance  and  the  highest  degree  of  care.  In  the 
case  of  Wallace  v.  Lincoln  Sav.  Bank  (89  Tenn.  630;  15  S.  W.  Rep.  454; 
ante,  p.  324),  it  was  expressly  held,  that  "  Bank  directors  are  not  expected 
to  give  their  whole  time  and  attention  to  the  business  of  the  company." 
See  Seventzel  v.  Penn.  Bank  (Pa.),  23  Atl.  Rep.  405;  Jones  v.  Johnson,  86 
Ky.  530;  0  S.  W.  Rep.  582;  Robinson  v.  Hall,  69  Fed.  Rep.  648. 


DIKECTORS    OF   PUBLIC   COMPANIES.  329 

with  the  contents  of  them.  It  was  their  duty  to  bo  so 
uc«]iuiinted,  audit  w;us  a  duty  which  thoy  had  undertaken  to 
perform  by  becoming  directors,  and  therefore  1  am  of 
opinion  that  they  are  liable  for  the  falsity  of  the  accounts." 

The  duties  and  liabilities  of  directors  was  very  much 
discussed  in  the  case  of  the  Joint  Stock  Co.  v.  Brown  (y). 
The  directors  of  a  biil-brokinor  company  had  committed 
hreaches  of  trust  and  done  acts  which  were  ultra  vires. 
Some  of  them  had  knowin<2;ly  committed  such  breaches, 
but  others  had  only  negligently  omitted  to  inform  them- 
selves of  what  was  going  forward  and  to  protest  against  it. 
James,  V.-C,  said:  "with  regard  to  one  of  them  (Mr. 
Gillespie),  I  have  held  that  there  was  no  sufficient  evidence 
of  his  concurrence  or  connivance  to  make  him  responsible. 
1  have,  however,  thought  it  not  right  to  give  him  his  costs, 
although  I  dismiss  him  from  the  suit,  because  I  think  a  man 
who  is  a  director,  and  goes  on  as  a  director  for  months, 
when  a  transaction  of  this  kind  is  going  on  is  not  justified 
[2G6]  in  saying,  *  I  really  did  not  i)ay  the  slightest 
attention  to  it,  I  had  a  sort  of  vague  notion  of  what  was 
going  on  ;  I  was  a  paid  director,  but  I  left  it  to  the  other 
directors  to  attend  to;  I  did  nothing.  I  took  it  for 
granted  all  was  ri<rht.'  I  think  he  is  entitled  to  this,  and 
I  cannot  tix  him  with  a  liability,  but  I  think  it  is  not  too 
much  of  a  penalty  for  him  to  pay  for  his  negligence,  that 
he  shall  not  have  any  costs  of  the  proceedings  which  have 
been  rendered  necessary  in  this  court  by  proceedings  of 
his  co-directors  which  he  took  no  pains  to  inquire  into  or 
interfere  with." 

With  regard  to  another  director  (Mr.  Brown),  the 
learned  vice-chancellor  held  that  he  was  liable.  He  had 
disapproved  of  what  was  done,  and  had  written  a  letter 
about  it,  and  thought  he  had  done  enough,  but  it  was 
held  that  he    had  neglected  to  i)erform  his  duty  by    not 

(y)  Joint  stock  Co.  r.  Urown.  I..  H.  8Eq.  381.— [In  re  CarillfT  Sav.  Kank  (1892),  2 
Oh.  100.} 


330  MOKE    THAN    ORDINARY    CARE. 

resorting  to  some  means  of  prevention  ;  and  another  director 
(Mr.  Bravo)  was  held  liable  for  very  similar  reasons.  It 
should  seem  that  even  Mr.  Gillespie  would  have  been 
liable  in  an  action  for  negligence  in  not  taking  ordinary 
care.  "Of  course"  (said  James,  V.-C),  "  it  is  quite  clear 
that  no  company  of  this  kind  could  be  carried  on  if  every 
director  was  obliged  to  sign  every  cheque,  and  it  is  there- 
fore required  that  the  cheques  should  be  signed  by  a  certain 
number  of  persons  for  the  safety  of  the  company.  That 
implies,  of  course,  that  every  one  of  those  persons  takes 
care  to  inform  himself,  or,  if  he  does  not  take  care  to 
inform  himself,  is  willing  to  take  the  risk  of  not  doing  so, 
of  the  purpose  for  which  and  the  authority  under  which 
the  cheque  is  signed ;  and  I  cannot  allow  it  to  be  said  for 
a  moment  that  a  man  signing  a  cheque  can  say,  '  I  signed 
that  cheque  as  a  mere  matter  of  form  ;  the  secretary  brought 
it  to  me ;  a  director  signed  it  before  me  ;  two  clerks  have 
countersigned  it;  I  merely  put  my  name  to  it  '  "  (z). 
In  Ranee's  case  (a),  James,  L.  J.,  said,  at  p.  188:  — 
"  If  the  directors,  by  placing  unbounded  reliance  upon 
[267]  the  representations  of  their  servants  or  actuaries, 
hud  arrived  at  the  conclusion  that  they  had  made  a  divisi- 
ble profit,  this  Court  ought  not,  I  say,  to  sit  as  a  Court  of 
Appeal  from  that  conclusion,  although  it  might  afterwards 
be  satisfactorily  proved  that  there  were  very  great  errors 
in  the  accounts  which  would  not  have  occurred  if  they  had 
been  made  out  with  greater  strictness  or  with  more  scruti- 
nising  care.  But  no  such  account  at  all  was  made  out.  A 
mere  cash  account  or  balance-sheet  in  such  a  company  as 
this,  presented  in  order  to  determine  whether  there  had 
been  a  profit  made,  and  for  the  purpose  of  declaring  a 
bonus  thereon,  is,  to  my  mind,  within  the  meaning  of 
Stringer's  case  (L.  R.  Ch.  475)  a  fraudulent  and  delusive 
balance-sheet.     If  a  breach  of  trust"  (and  I  presume  a 

(e)  At  p.  404.  (a)  Ranee's  case,  L.  R.  6  Ch.  104. 


DIRECTOKS   or    PUBLIC   COMPANIES.  331 

neglijj^ent  act)  *'is  committed  by  tlie  directors,  a  director 
who  joiii.s  in  the  act,  althouLih  not  boinfj  aware  that  such 
act  is  contrary  to  his  duty,  is  c(iually  liable  with  tho>e  who 
knew  they  were  acting  contrary  to  their  duty,  for  he  ought 
to  li;ive  made  himself  acciuainted   wiiii  his  duties  "  (//). 

(M  (.Irliucs  r.  Harrison,  is  L.  J.  ch.  823,  S27 ;  Joint  Stock  Discount  Co.  r. 
Hrowu,  L.  K.  8  Eij.  281. 

(h)  In  Weetjen  V.  Vlbbard  (5  IIun,2r.o)  thecourtsaid:  "  It  is  the  posi- 
tive duty  of  eacli  trustee  to  protect  tlie  trust  from  every  niisfeasance  on  tlie 
part  of  the  others  acting  with  him;  and  when  it  comes  to  his  knowledjjje 
Chat  tliey  intend  to  abuse  their  trust  by  a  misuse  of  the  property  com- 
niittcd  to  the  charge  of  aW,  it  is  his  duty  to  institute  such  proceedings 
as  may  be  attended  with  the  effect  of  preventing  it.  And  when  the  act 
has  been  poi'formed,  he  should  promptly  take  all  necessary  measures  to 
secure  the  restoration  of  the  fund  or  property  misappropriated  to  the 
private  objects  of  the  trust.  A  mere  refusal  to  do  that  will  so  far  involve 
him  in  the  consequence  of  his  associate's  breach  of  duty  as  to  entitle 
the  beiiefloiaries  to  maintain  the  necessary  action  in  their  name  for  the 
protection  of  their  violated  interests.  Active  participation  even  In  the 
wrong  is  not  reqmred  to  make  a  trustee  a  party  to  it,  but  silent  con- 
nivance will  be  sufficient  for  the  purpose  when  it  may  be  observed  to 
afford  the  means  of  rendering  the  misconduct  of  the  others  successful." 

Still  stronger  language  was  uned  in  Percy  v.  Millandon  (3  La.  Rep. 
668) :  "  Every  director  present  at  a  boanl  is  responsible  for  any  act  of  it 
for  which  he  votes  or  which  he  does  not  oppose  and  in  the  latter  case  for 
all  the  injurious  consequences  of  the  act  which  he  does  not  fairly  lal>or 
to  avert.  Every  absent  director  is  equally  responsible  in  cases  of  extreme 
neglect  In  his  attendance  at  the  board,  or  in  case  after  the  act  comes  or 
must  have  come  to  his  knowledge,  iiad  he  used  due  diligence,  he  does  not 
labor  to  avert  its  injurious  consequence." 

In  Bank  of  St.  Marys  v,  St.  John  ("25  Ala.  5(50),  it  is  said:  "  Where  a 
man  permits  himself  to  be  qualified  as  a  director  of  a  bank  inviting  busi- 
ness in  the  way  of  deposits,  he  owes  a  duty  to  depositors.  It  then 
becomes  his  duty  to  have  some  oversight  of  the  business  and  condition 
of  his  bank,  and  to  know  how  that  business  is  conducted ;  to  see  that  the 
necessary  and  proper  officers  are  selected,  and  in  their  places  perform- 
ing their  duties;  and,  at  least,  to  protest  against  any  palpable  misman- 
agement." In  this  case  the  president  was  allowed  to  manage  the  whole 
business  of  the  bank  in  the  interest  of  his  firm,  so  that  the  assets  were 
drawn  out  and  lost,  and  the  directors  were  held  personally  responsible. 

In  United  Society  of  Shakers  v.  Underwood  (9  Bush,  OOli),  directors 
were  held  liable  for  misappropriation  by  a  bank  of  a  special  deposit 
where  they  ought  or  could  have  known  of  the  wrong  being  done.     In 


332  MORE   THAN   ORDINARY   CARE. 

[268]  In  Land  Credit  Co.  r.  Lord  Fermoy  (c),  the 
Lord  Chancellor  said,  "  I  am  exceedingly  reluctant  in 
any  way  to  exonerate  directors  from  performing  their 
duty,  and  I  quite  agree  that  it  is  their  duty  to  be  awake, 
and  that  their  being  asleep  would  not  exempt  them  from 
the  coosequeuces  of  not  attending  to   the  busiuess  of  the 

company Whatever     may   be   the    case   with    a 

trustee,,  a  director  cannot  be  held  liable  for  bein^  de- 
f rauded  ;  to  do  so  would  make  his  position  intolerable." 
Upon  the  facts  of  that  case  the  Court  held  that  the  matter 
had  been  concealed  from  the  director,  and,  that  he  was  not 
liable. 

If  a  company  agree  to  pay  fully  paid-up  shares  in 
discharge  of  a  debt,  they  must  either  do  so  in  fact  or 
register  a  contract  under  sect.  25 ;  and  if  they  do  not  they 
are  liable  in  damages  for  negligence,  and  the  fact  that  a 
shareholder  has  the  contract  in  his  hands  and  omits  to 
register  it  is  not  contributory  negligence,  as  it  seems  (d), 
but  it  seems  very  doubtful  whether  a  shareholder,  who  is  a 
sort  of  partner,  can  bring  such  an  action,  and  whether  he 
must  not  cease  to  be  a  shareholder  before  he  can  sue  for 
damages  (e). 

The  165th  section  of  the  Companies  Act,  1862  (/), 
enacts  that  where  in  the  course  of  winding  up  it  appears 
that  a  director  has  misapplied  or  become  liable  for  moneys, 
[209]  oi-  been  guilty  of  any  misfeasance  or  breach  of 
trust,  the  Court  may  upon  application  compel  him  to  repay 
or  contribute  to  the  assets. 

(c)  Land  Credit  Co.  v.  Lord  Fermoy,  (e)  Holdsworth  v.  City  of  Glasgow 
L.  R.  6  Ch.  770.    See  also  In  re  Denham       Bank,  5  App.  Cas.  317. 

A  Co.,  25  Ch.  D.  752.]  (/)  25  &26  Vict.  c.  89,  8. 165.   [Thomp- 

(d)  /n  re  Government  Secnrlty  Co.,      son's  Liability  of  Officers  and  Agents  of 
Mndford'e  Claim,  14   Ch.  D.  634;  Great      Corporations,  Appendix.] 
Australian  Gold  Co.,  £x  parte   Apple- 
yard,  18  Ch.  D.  597. 


such  cases,  the  burden  of  proof  is  upon  the  plaintiff  to  show  a  lack  of 
diligence  is  discovering  the  fraud.— Savings  Bank  v.  Copenton,  87  Ky. 
30(;;  8  S.  W.  Rrp.  885. 


DIKECTOU8   OF   PUBLIC    COMPANIES CAUUIEU8.       333 

Where  tho  defondant  company  had  been  guilty  of  a 
WTon;^ful  act  of  omission  in  not  rej^istcring  tho  plaintiff's 
namo  in  their  hooks,  and  also  of  a  wrongful  act  of  com- 
mission ill  declaring  shares  to  be  forfeited,  it  was  held  that 
both  acts  were  the  proper  subject  of  an  action  (g). 

It  h^eems  that  promoters  of  companies  stand,  in  some 
respects,  in  a  fiduciary  relation  towards  tlie  future  company, 
and  have  duties  tjowards  it  (see /?er  Lindley,  L.  J.)  ;  and 
it  should,  therefore,  seem  that  a  promoter  may  be  liable  in 
sotno  cases  for  negligence  at  tho  suit  of  the  company  lor  a 
breach  of  such  duty  before  the  incori)oration  of  the  com- 
pany, but  there  seems  to  be  no  precedent  for  such  an 
action  (A). 


Section  VIII. 
Carriers. 


With  the  liability  of  a  common  carrier  as  a  sort  of  in- 
surer this  book  has  nothing  to  do.  He  is  in  that  capacity 
liable  in  any  event,  except  the  act  of  God  {i)  or  the 
Queen's  enemies,  unless  where  the  goods  are  in  their  nature 
liable  to  extraordinary  risks  and  are  injured  in  consequence 

ig)  Catchpolc  r.  Ambcrgatc  Uy.  Co.,  (i)  As  to  what  Is  the  act  of  God,  sco 

I  Kl.  A  \\\.  111.  There  was  no  allegation  Nugent  v.  Smith,  L.  U.  1  C.  V.  D.  \Zi ;  4.5 
o(  negligence,  but  generally  of  a  wrong  L.  J.  C.  V.  (J'J7.  And  in  what  cases  ltwl!l 
by  which  the  plainlifi  hud  suffered  excusean  act.sec  arUe,  Ch.I.,  I'roxliualo 
damage.  Cause;  [_6qq  post,  p.  3.i6,  note  (p)J. 

(A)  Emma  Sliver  Mining  Co.  f.  Grant, 

II  Ch.  U.  934. 

{h)  In  ihe  case  of  Yale  Gas-Stone  Co.  v.  Wilcox  (G4  Conn.  101;  29 
Atl.  Rep.  303),  the  court  said:  "  As  promoters  of  the  new  company,  they 
occupied  a  fiduciary  relation  toward  it  similar  to  that  of  agent  and  prin- 
cipal, and  they  had  no  right  in  these  negotiations  to  derive  any  advantage 
over  other  stockholders  without  a  full  and  fair  disclosure  of  the  trans- 
actions, and  any  secret  profits  so  made  they  must  refund  to  the  company." 
Citing  Densmore  Oil  Co.  v.  Densmore,  G4  Pa.  St.  43;  Emery  v.  Parrott, 
107  Mass.  95;  Getty  v.  Devlin,  64  N.  Y.  403.  See  Chandler  v.  Bacon,  30 
Fed.  liep.  538. 


334  MORE   THAN   ORDINARY   CARE. 

of  such  peculiar  character,  for  then  the  common  carrier 
becomes  liable  only  where  he  has  been  negligent  (k). 

So,  also,  a  common  carrier  is  not  an  insurer  after  the 
[270]  goods  have  arrived  at  their  destination.  He  then 
becomes  liable  only  where  negligence  is  shown  (Z). 

Railway  companies  are,  apart  from  statute  law  or  spe- 
cial contract,  common  carriers,  and  subject  to  the  like 
duties  and  privileges  with  ordinary  common  carriers  (w), 
but  further  they  are  bound  to  carry  for  all  persons  upon 
equal  terms  (?i),  as  well  as  upon  reasonable  terms. 

Carriers  have  been  relieved  by  the  Legislature  in  some 
degree  from  the  extremely  onerous  obligations  cast  upon 
them  by  the  common  law;  and  by  the  Carriers  Act,  1830,  it 
is  declared  that  they  shall  not  be  liable  for  the  loss  of  or 
injury  to  certain  goods  above  the  value  of  £10,  unless  their 
value  be  declared  and  an  increased  charge  paid.  Section  I 
of  the  Carriers  Act,  1830,  provides  as  follows: — "That 
from  and  after  the  passing  of  this  Act  no  mail  contractor, 
stage-coach  proprietor,  or  other  common  carrier  by  land 
ibr  hire,  shall  be  liable  for  the  loss  of,  or  injury  to,  any 
article  or  articles  or  property  of  the  descriptions  following 
(that  is  to  say),  gold  or  silver  coin  of  this  realm,  or  of  any 
foreign  State,  or  any  gold  or  silver  in  a  manufactured  or 
unmanufactured    state,  or   any   precious    stones,  jewelry, 


(/:)  Blower  v.  G.  W.  Ry.  Co.,  L.  R.  70.  the  transitus  Is  at  an  end  and  the  carrier 

P.  (animals  by  land) ;  Kendal  v.  L.  &  8.  ceases  to  hold  the  goods  as  carrier,  but 

W.  Uy.  Co.,  L.  R.  7  Ex.  373;  41  L.  J.  Ex.  holds  them   as  agent  of  the  consignee, 

ISl;  Nugent  v.  Smith,  supra  (animals  by  see  In  re  McLaren,  48  L.  J.  Bk.  (C.  A.) 

sea);    McDonald   v.  Highland   Ry.  Co.,  49.    By  special  agreement,  of  course,  the 

Conrt  of  Sessions,  3d  series,  vol.  xi.  614  carrier  may  be  agent  for  the  consignee 

(perishable  goods).  and  not  for  the  consignor. 

(0  Garslde  v.  Trent  Navigation,*  T.  (m)  Railway  Clauses  Act,  1816,  s.  98, 

R.  581;  Bourne  f.Gatllffe.M.&G.  643;  11  but  their  duties  are  in  many  respects 

CI.  &  Fin.  45 ;  Crouch  v.  Gt.  W.  Ry.  Co., 27  regulated  by  the  Railway  Commission- 

L.  J.  Ex.  34.'5;  Ileugh  v.  L.  &  N.  W.  Ry.  ers  under  the  Regulations  of  Railways 

Co.,  L.  R.  f,  Ex.  T>\ ;  Mitchell  v.  L.  &  Y.  Ry.  Act,  1873. 

Co..  L.  It.  10  Q.  B.  2.')6;  44  L.  J.  Q.  B.  107;  (n)  Parker  v.  Gt.  Western,  7  M.  &  G. 

Chai.man  v.  G.  W.  R.  Ry.  Co.,  49  L.  J.  Q.  253;  Baxendale  v.  East.  Co.  Ry.  Co.,  4  C. 

B.  4-20  ;5  Q.  B.  D.  278.    As  to  goods  by  sea,  B.  N.  8.  63 ;  Piddington  v.  S.  E.  Ry.  Co., 

Hce  Wilson  V.  London,  &c.,  Co.,  L.  R.  1  C.  6  C.  B.  N.  8.  Ill ;  [see  post,  p.  339,  Rates]. 
P.  01 ;  25  &  26  Vict.  c.  63,  8.  67.    As  to  when 


CAUUIK!(S  —  KAILWAY    COMPANIES.  335 

watches,  clocks,  or  timepieces  of  any  description,  trinkets, 
billa,  notes  of  the  governor  and  company  of  the  bank  of 
En<;laud,  Scotland,  and  Ireland  respectively,  or  of  any 
other  bank  in  Great  Britain  or  Ireland,  orders,  notes,  or 
securities  for  payment  of  money,  English  or  foreign, 
stumps,  mai)s,  writings,  title-deeds,  paintings,  engravings, 
[271]  pictures,  gold  or  silver  plate  or  plated  articles, 
irlass,  china,  silks  in  a  manufactured  or  unmanufactured 
state,  and  whether  wrought  up  or  not  wrought  up  with  other 
materials,  furs  or  lace  [by  28  &,  29  Vict.  c.  94,  this  does 
not  include  machine-made  lace],  or  any  of  them,  contained 
in  any  parcel  or  package  which  shall  have  been  delivered, 
cither  to  be  carried  for  hire,  or  to  accompany  the  person  of 
any  passenger  in  any  mail  or  stage-coach,  or  other  public 
conveyance,  when  the  value  of  such  article  or  articles  or 
property  aforesaid,  contained  in  such  parcel  or  package, 
shall  exceed  the  sura  of  ten  pounds,  unless  at  the  time  of 
the  delivery  thereof  at  the  office,  warehouse,  or  receiving- 
house  of  such  mail-contractor,  stage-coach  proprietor  or 
other  common  carrier,  or  to  his,  her,  or  their  book-keeper, 
coachman,  or  other  servant,  for  the  purpose  of  being  car- 
ried, or  of  accompanying  the  person  of  any  passenger  as 
aforesaid,  the  value  and  nature  of  such  article  or  articles 
or  property  shall  have  been  declared  by  the  persons  send- 
ing or  delivering  the  same,  and  such  increased  charge  as 
hereinafter  mentioned,  or  an  engagement  to  pay  the  same, 
be  accepted  by  the  person  receiving  such  parcel  or  pack- 
age." The  Act  applies  only  where  the  loss  takes  place 
upon  land  (o).  The  Act  protects  the  carrier,  notwith- 
standing the  goods  are  being  carried  beyond  their  destina- 
tion (})). 

(0)  Lo  Conteur  v.  London,  Brighton  C.  L.  341 ;  PiancianI  v.  Ix)ndon  and  S.  W, 

and  South  Coast  Ry.  Co.,  35  L.  J.  <i.  IJ.  Ry.  Co.,  IS  C.  1?.  J-JO. 
40;  L.  K.  1  Q.  B.  .')4  ;  Baxendale  f .  Great  (p)  Morrlt  r.  N.  East  Ry.  Co.,  L.  R.  1 

K»8t.  Ky.  Co.,  4  Q.  B.  244;  38  L.  J.  Q.  B-  Q.  B.  U.   302 ;  4.%  L.  J.  ^^  B.  28*t,  C.  A.     As 

137.    As  to  what  le  a  loss,  sec  Iloarn  v.  to  what  goods  are  within  the  section  the 

I^ndon  and  S.  W.  Ry.  Co.,  10  Kxch.  793;  following  caics  may  be  consulted.  They 

Wallace  v.  Dublin,  Ac,  Ry.Co.,8  Ir.Rep.  are  taken  In  the  order  in  which  the  words 


336  MORE  THAN  ORDINARY  CARE. 

[272]  It  is  not  necessary  that  the  declaration  of  value 
should  be  in  any  particular  form  {q).  The  declaration 
being  made,  the  customer   has  done  his  duty,  and  if  the 

interpreted  by  them  occur  in  the  Act:  Co.,  33  L.  J.  Ex.  187;  Flowers  v.  S.  East. 

LeConteari-.  London  and  S.  W.  Ry.  Co.,  Ry.   Co.,  16  L.  T.   339    ("silks,    &c.,") ; 

supra     (" timepieces "1;     Bernstein    v.  Mayhew  v.  Nelson,  6  C.  &  P.  58  ("furs") ; 

Ba.\endale,2SL.  J.  C.  P.  265  ("trinkets").  Treadwin  v.  Great   Eastern  Ry.  Co.,  L- 

Stoesslger  v.  S.  East.  Ry.  Co.,  8  E.  &.  B.  R.  3  C.  P.  308  ("  lace,"    and  see  28  &  20 

549  ("bills,  notes,  or  secarities  for  pay-  Vict.  c.  94,  supra);  the   plaintiff's   own 

ment  of  money") ;  Wyld  t'.  Pickford,  8  wagon   placed   upon   a    railway    truck 

M.  &  W.  443  ("  maps  ") ;  Boys  v .  Pink,  8  was  held  to  be  a  "  parcel  or  package," 

C.  &  P.  361  ("engravings");  Anderson  where  goods  within  the  Act  were  packed 

V.  London  and  N.  West.  By.  Co.,  39  L.  J.  in  the  wagon,  Whaite  v.  Lancaster  and 

Ex.  55;  L.  R.  5  Ex.   90    ("  pictures  "  —  Torks.    Ry.  Co.,  43  L.  J.  Ex.  47;  L.  R.  9 

frame) ;  Owen  j^.  Burnett,  SM/)r-a("  glass,"  Ex.  67. 

large  looking-glass) ;   Hart   v.   Baxeu-  (q)  Bradbury  v.  Sutton,  19  W.  R.  800; 

dale,  20  L.  J.  Ex.  338;  Bernstein  v.  Bax-  21  W.  R.  128. 
endale,  supra;   Brunt   v.  Midland    Ry. 

Q))  A  common  carrier  is  one  that  undertakes  for  hire  or  reward  to 
carry  goods  for  all  persons,  who  may  choose  to  employ  it,  from  one  place 
to  another. —  United  States  Express  Company  v.  Backman,  28  Ohio  St. 
150;  Whart.  on  Neg.,  §  545;  Fuller  r?.  Bradley,  25  Pa.  St.  120;  Samms  v. 
Stewart,  20  Ohio,  69;  Wood  on  Railways  (1894),  p.  1876;  Independence 
Mills  Co.  V.  Burlington,  etc.,  R.  Co.,  72  la.  535;  34  N.  W.  Rep.  320. 

Railway  companies  are  common  carriers  of  goods. —  Finn  v.  Western 
R.  Co.,  112  Mass.  524;  Hubbard  v.  Harnden  Express  Co.,  10  R.  I.  244; 
Houston,  etc.,  R.  Co.  v.  Ham,  44  Tex.  628;  Mobile,  etc.,  R.  Co.  v. 
Weiner,  49  Miss.  725;  Mobile,  etc.,  R.  Co.  v.  Williams,  64  Ala.  1C8; 
Ohio,  etc.,  R.  Co.  v.  Yohe,  51  Ind.  181.  (In  Memphis,  etc.,  R.  Co.  v. 
Southern  Exp.  Co.,  U.  S.  C.  C,  22  Cent.  L.  J.  349,  it  was  held  that "  there 
is  no  legal  duty  resting  on  railway  companies  to  furnish  express  facil- 
ities to  all  persons  and  companies  that  demand  them  and  therefore  no 
such  duty  to  furnish  such  facilities  to  any  company."  S.  P.,  St.  Louis,  I 
M.,  etc.,  Ry.  Co.  v.  Southern  Exp.  Co.,  117  U.  S.  1. 

As  such  they  are  insurers  of  goods  received  by  them  to  be  carried 
against  all  casualties,  except  those  which  arise  from  the  act  of  God,  pub- 
lic enemies,  the  fault  of  the  party  or  the  inherent  qualities  of  the  prop- 
erty itself.— Wood  on  Railways,  (1894),  p.  1877.  See  Davis  v.  Wabash, 
etc.,  R.  Co.,  89  Mo.  340;  1  S.  W.  Rep.  327;  Norris  v.  Savannah,  F.  &  W. 
Ry.  Co.,  23  Fla.  182;  1  So.  Rep.  475. 

An  express  company  is  a  common  carrier  of  valuables  and  is  excepted 
from  liability  by  vis  major.  —  Southern  Exp.  Co.  v.  Glenn,  16  Lea,  472;  1 
S.  W.  Rep.  102. 

Act  of  God.—  Anything  may  be  said  to  result  from  the  act  of  God,  in 
the  production  of  which  man  has  no  agency  immediate  or  remote.— 
Wood  on  Railways  (1894),  p.  1877.    See  Black  v.  Chicago,  B.  &  Q-  R- 


CARRIERS CONCUICRIXG    NKCJLlCKNtj;.  337 

tnrricr  then  chooses  not  to  demand  tho  hij^her  rate  he  may 
do  80,  and  his   liability  rests  as  at  common  law  (r).     ISec- 

(r)  Bohrens  v.  Great  Northerns  Ry.  Go.,  81  L.  J.  Ex.  290. 


Co.,  30  Nt'b.  107;  46  N.  W.  Rep.  428;  Lour  v.  Pennsylvania  U.  Co.,  147 
Pa.  St.  843;  23  Atl.  Rep.  459;   29  W.  N.  C.  375. 

The  following  cases  have  been  held  to  be  within  this  excei)tlon:  A 
tempesL— Glllett  v.  Ellis,  II  111.  579;  Blythe  v.  Denver  &  R.  G.  Ry.  Co., 
15  Colo.  333;  25  Pac.  Rep.  702. 

A  Hnow  storm. —  Ballentine  v.  North  Missouri  R.  Co.,  40  Mo.  491; 
Palmer  v.  Atchison,  etc.,  R.  Co.,  101  Cal.  187;  35  Pac.  Rep.  G30;  Black w. 
Chicago,  B.  &  Q.  R.  Co.,  30  Neb.  197;  4G  N.  W.  R.  428. 

An  earth<iuake. —  Slater  v.  South  Carolina  Ry.  Co.,  29  S.  0.  9G;  G  S. 
E.  Rep.  93G. 

Freezing  of  navigable  waters. —  Parsons  v.  Ilardy,  J4  Wend.  215; 
West  V.  The  Berlin,  3  la.  532. 

An  extraordinary  flood. —  Wallace  v.  Clayton,  42  Ga.  443;  Smith  v. 
Western  Ry.,  etc.,  91  Ala.  455;  8  So.  Rep.  764. 

Atmospheric  condition  rendering  telegraph  wires  unavailable. — 
International  &  G.  N.  R.  Co.  v.  Hynes,  3  Tex.  Civ.  App.  20;  21  S.  W.  Rep. 
«;22. 

Foundering  of  a  vessel  on  a  hidden  rock  or  snag,  unknown  to  navi- 
gators.—Bennewill  V.  Cullen,  5  Harr.  238;  Williams  v.  Grant,  1  Conn. 
487;  Faulkner  v.  Wright,  1  Rice,  108. 

But  a  tire  not  caused  by  lightning. —  Cox  v.  Peterson,  30  Ala.  G08; 
Parker  v.  Flagg,  26  Me.  181;  GrafE  v.  Bloomer,  9  Pa.  St.  114. 

A  collision  not  caused  by  a  tempest. —  Pluisted  u.  Boston  Steam 
Nav.  Co.,  27  Me.  132. 

The  sinking  of  a  vessel  by  collision  with  a  piece  of  timber. —  New 
Brunswick  Steam  Nav.  Co.  v.  Tiers,  24  N.  J.  L.  697. 

By  an  unseen  obstruction  in  navigation. —  Broussean  v.  The  Hudson, 
11  La.  Ann.  427. 

Or  a  newly  formed  bar  in  a  river. —  Friend  v.  Woods,  6  Gratt.  189,  are 
not  within  the  exception. 

Concurringr  Neerligrence. —  Where  negligence  of  the  carrier  and  the 
act  of  God  concur  In  producing  the  injury,  the  carrier  is  liable.— Hart 
V.  Allen,  1  Watts,  115;  Klauber  v.  American  Express  Co.,  21  Wis.  21; 
Morgan  tj.  Dibble,  29  Tex.  107;  Rogers  v.  Railroad  Co.,  67  Cal.  606; 
8  W.  C.  Rep.  20;  Packard  v.  Tayh)r,  35  Ark.  402;  Adams  Express  Co.  v. 
Jackson,  92  Tenn.  326;  21  S.  W.  Rep,  666;  Tanner  v.  New  York,  etc.,  R. 
Co.,  108  N.  Y.  623;  15  N.  E.  Rep.  379;  Chicago  B.  &Q.  R.  Co.  v.  Manning, 
23  Neb.  552;  37  N.  W.  Rep.  462. 

And  this  rule  has  been  held  to  api)ly  to  a  loss  by  an  act  of  God  after 
a  negligent  delay  by  the  carrier.—  Read  v.  Spaulding,  30  N.  Y.  630;  Mc- 
Graw  V.  B.  &  Q.  R.  Co.,  18  W.  Va.  361 ;  Baltimore  &  O.  R.  Co.  v.  Iveetly, 


338  MORE   THAN   ORDINARY   CARE. 

tion  2  provides  that  an  increased  rate  may  be  demanded, 
and  notices  are  to  be  put  up  in  offices  or  warehouses  by 

75  Md.  320;  23  Atl.  Rep.  643.     See  Richmond  &D.  R.  Co.  v.  White,  88  Ga. 
805;   15  S.  E.  Rep.  802. 

(But  the  weig  ht  of  authority  is  opposed  to  this  view,  and  the  carrier  in 
such  a  case  has  been  held  not  liable. —  Morrison  v.  Davis,  20  Pa.  St.  171; 
Denny  v.  N.  Y.  Cent.  R.  Co.,  13  Gray,  481;  Hoadley  v.  Northern  Trans- 
portation Co.,  115  Mass.  304;  Railroad  Co.  v.  Reeves,  10  Wall.  176;  Mc- 
Clary  v.  Sioux,  etc.,  City  R.  Co.,  3  Neb.  44;  19  Am.  Rep.  631.) 

To  a  loss  caused  by  an  act  of  God,  when  the  carrier  deviates  from  his 
regular  course. — Lawson's  Cont.  of  Carriers,  §  11 ;  Powers  v.  Davenport, 
7Blackf.  496;  Phillips  y.  Brigham,  26  Ga.  617;  Lawrence  v.  McGregor, 
Wright,  193. 

Or  when  the  carrier  has  agreed  to  send  goods  by  one  line  and  sends 
them  by  another. —  Johnson  v.  New  York  Central,  etc.,  R.  Co.,  33  N.  Y. 
610. 

Unusual  and  unexpected  pressure  of  business  will  not  excuse  a  carrier 
from  his  duty  to  receive  and  promptly  carry  goods. — International  &  G. 
W.  R.  Co.  V.  Anderson,  3  Tex.  Civ.  App.  8;  21  S.  W.  Rep.  691;  Louisville 
&  N.  R.  Co.  V.  Touart,  97  Ala.  514;  11  So.  Rep.  766;  Marine  Ins.  Co.  v. 
St.  Louis,  etc.,  Ry.  Co.,  41  Fed.  Rep.  643. 

Public  Enemy.  —  The  carrier  is  not  liable  for  a  loss  caused  by  a  pub- 
lic enemy.  —  Lewis  v.  Ludwick,  6  Cold.  368 ;  Hubbard  v.  Harnden  Ex- 
press Co.,  10  R.  L  251;  Smith  v.  Brazleton,  1  Heisk.  44. 

Thieves  and  robbers  are  not  public  enemies  in  the  sense  of  the  excep- 
tion. —Hall  V.  Cheney,  36  N.  H.  26;  Lang  v.  Pennsylvania  R.  Co.,  154  Pa. 
St.  342;  26  Atl.  Rep.  370;  32  W.  N.  C.  205. 

Nor  rioters  and  insurgents.  —  Jones  on  Bailments,  104.  See  Missouri 
Pac.  Ry.  Co,  v.  Levi  (Texas),  14  S.  W.  Rep.  1062;  Southern  Pac.  Ry.  Co. 
V.  Johnson  (Texas),  15  S.  W.  Rep.  121;  Gulf,  C-  &  S.  F.  Ry.  Co.  v. 
Gatewood,  79  Tex.  89;  14  S.  W.  Rep.  913;  Haas  v.  Kansas  City,  etc.,  R. 
Co.,  81  Gc.  792;  7  S.  E.  Rep.  629.  But  see  International  &  G.  N.  R.  Co. 
V.  Tisdale,  74  Tex.  8;  US.  W.  Rep.  900;  Geismer  v.  Lake  Shore  &  M.  S. 
Ry.  Co.,  102  N.  Y.  503;   55  Am.  Rep.  837. 

But  insurgents  against  the  government  during  the  late  civil  war  were 
held  to  be  public  enemies.  —  Nashville,  etc.,  Co.  v.  Estes,  10  Lea,  749. 
See  post,  p.  3.56. 

Inherent  Defects  in  Goods.  —  The  carrier  is  not  liable  for  losses  to 
goods  arising  from  inherent  defects.  —  Ang.  on  Car.,  §  211;  Whart.  on 
Neg.,  §  565;  Rixford  v.  Smith,  52  N.  H.  355;  Missouri  Pac.  Ry.  Co. 
0.  Fagan  (Tex.  Civ.  App.),  27  S.  W.  Rep.  887;  Hance  v.  Pacific  Exp.  Co., 
48  Mo.  App.  179, 

Nor  for  losses  arising  from  the  ordinary  wear  and  tear  of  goods  in 
the  course  of  transportation,  nor  for  their  ordinary  deterioration  in 
quantity  or  quality.  —  Lawson's  Cont.  Carriers,  g  14. 


CARUIEKS  —  RAILWAY   COMPANIES.  339 

which    custoinera  arc    to    be  bound.     Section  3  provides 
that  carriers  are  to    give  receipts  for  such  extra  charges. 

As  where  the  {joods  are  of  a  perishable  nature  and  subject  to  decaj*.  — 
Nelson  v.  Woodruff,  1  Black.  I5G;  Powell  v.  Mills,  37  Miss.  GOl. 

Or  of  a  combustible  or  explosive  character  and  the  carrier  Is  not 
aware  of  the  fact.  — Boston,  etc.,  R.  Co.  r.  Shidley,  107  Maes.  6G8. 

Or  when  they  are  improperly  packed  and  damaged  in  consequence.  — 
Ohh),  etc.,  K.  Co.  r.  Dunbar,  20  111.  G23;  Ri.Kford  v.  Smith,  52  N.  II.  355; 
Klauber  v.  American  Express  Co.,  21  Wis.  21;  Goodman  r.  Oregon  Ky. 
&  Nav.  Co.,  22  Ore.  14;  28  Pac.  Rep.  8:t4;  Phoenix  Clay-Pot  Works  c. 
Plttxburgli  &  L.  E.  R.  Co.  (Pa.),  20  Atl.  Rep.  1058;  27  W.  N.  C.  321. 

Unless  the  carrier  is  himself  negligent.  —  Briggs  v.  Taylor,  28  Vt.  180; 
Jennings  v.  Grand  Trunk  Ry.  Co.,  52  Ilun,  227;  5  N.  Y.  S.  Rep.  140; 
Beard  r.  Illinois  C.  R.  Co.,  79  la.  518;  44  N.  W.  Rep.  800. 

Bates. —  Railway  companies  are  generally  bound  to  carry  for  all  upon 
equal  and  reasonable  terms.  —  Union,  etc.,  R.  Co.  v.  Erie  R.  Co.,  37  N.  J. 
L.  2:?;  New  England  Express  Co.  v.  Main  Central  R.  Co.,  57  Me.  188; 
Hagau  r.  Aiken,  9  Lea,  CO!);  Auderied  u.  Railroad  Co.,  C8  Pa.  St.  370; 
Messenger  r.  Pennsylvania  R.  Co.,  3G  N.  J.  Eq.  407;  Louisville,  E.  &  St. 
L.  Con.  R.  Co.  V.  Wilson,  132  Ind.  517;  32  N.  E.  Rep.  311;  Union  Pac. 
Ky.  Co.  I'.  Goodridge,  149  U.  S.  C80;  13  S.  Ct.  Rep.  970;  Same  v.  Taggart, 
149  U.  S.  698;  13  S.  Ct.  Rep.  977;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Bow- 
man (Tex.  Civ.  App),  25  S.  W.  Rep.  140;  Ford  v.  London  &  S.  W.  Ry., 
60  Law  J.  Q.  B.  130;  Liverpool  Corn  Trade  Assoc,  v.  London  &  N.  W. 
Ry.,  [1891 J  Q.  B.  120;  Cowan  v.  Bond,  30  Fed.  Rep.  54;  Cook  v.  Chicago, 
etc.,  Ry.  Co.,  81  la.  551 ;  46  N.  W.  Rep.  1080;  Samuels  v.  Louisville  &  N. 
R,  Co.,  31  Fed.  Rep.  57.  (So  are  steamship  lines. —  De  Menacho  v. 
Ward,  27  Fed.  Kep.  529;  23  Batchf.  C.  Ct.  502. 

*'  Discriminations  in  rates  of  freight  if  fair  and  reasonable  and  founded 
on  grounds  consistent  with  public  interest,  are  allowable." —  Ragan  v. 
Buffet,  9  Lea,  609,  citing  Ilersh  r.  Northern,  etc.,  R.  Co.,  74  Pa.  St.  181 ; 
Chicago,  etc.,  R.  Co.  r.  People,  67  111.  11;  Fitchburg  R.  Co.  r.  Gage,  12 
Gray,  393.  See  Cowden  v.  PaclQc  Coast  S.  S.  Co.,  94  Cal.  470;  29  Pac. 
Rep.  873;  Cleveland,  C,  C.  &  I.  Ry.  Co.  v.  Closser,  126  Ind.  348;  26  N. 
E.  Rep.  159. 

In  the  United  States  the  common  law  rule  prohibiting  common  car- 
riers from  making  unreasonable  charges  does  not  apply  to  Interstate 
commerce  (Swift  r.  Pliiladelphla  &  R.  R.  Co.,  58  Fed.  Rep.  858)  ;  but  the 
eamc  is  now  regulated  by  the  Interstate  Commerce  Act. 

It  has  been  held  that  a  currier  may  discriminate  in  rales  In  favor  of 
persons  shipping  large  quantities  of  freight  over  those  .shipping  small 
quantities.—  Concord,  etc.,  R.  C.  r.  Forsaith,  59  N.  II.  122;  47  Am.  Rep. 
122;  Kinsley  v.  Buffalo,  etc.,  R.  Co.,  37  Fed.  Rep.  181. 

But  in  another  case  (Scofleld  v.  Lake  Shore,  etc.,  R.  Co.,  43  Ohio  St. 
571;  15  Law  Bull.  26)  such  discrimination  was  held  unlawful. 


340  MOKE   THAN   ORDINARY   CARE. 

By  section  4  public  notices  are  not  to  limit  the  common  law 
liability    of   the    carrier    in    respect  of    any  other  goods. 

Arrival  at  Destination. —  After  the  arrival  of  the  goods  at  their  des- 
tination  the  carrier  is  only  liable  as  warehouseman. —  Whart.  on  Neg.  571. 

In  some  cases  its  liability  as  insurer  has  been  held  to  continue  until 
the  consignee  has  been  notified  of  their  arrival  and  a  reasonable  oppor- 
tunity has  been  afforded  him  of  removing  them. —  Blumenthal  v.  Brain- 
ardjoSVt.  483;  Jeffersonville  K.  Co.  v.  Cleveland,  2  Bush,  418;  Maignan 
V.  New  Orleans,  etc.,  R.  Co.,  49  La.  Ann.  133;  Lemke  v.  Chicago,  etc.,R. 
Co.,  39  Wis.  449;  Moses  v.  Boston,  etc.,  R.  Co.,  32  N.  H.  523;  Annis- 
ton  &  A.  R.  Co.  V.  Ledbetter,  92  Ala.  326;  9  So.  Rep.  73;  Pindell  v.  St. 
Louis  &  H.  Ry.  Co.,  41  Mo.  App.  84,  Dunham  v.  Boston  &  A.  R.  Co.,  46 
Hun,  245;  Black  v.  Ashley,  80  Mich.  90;  44  N.  W.  Rep.  1120;  Collins  ». 
Alabama  G.  S.  R.  Co.  (Alabama),  16  So.  Rep.  140. 

And  in  others  when  the  goods  have  arrived  and  been  placed  in  the 
company's  warehouse  or  freight  depot. —  Mohr  v.  Chicago,  etc.,  R.  Co., 
40  la.  579;  Neal  v.  "Wilmington,  etc.,  R.  Co.,8  Jones  L.  482;  Southwestern, 
etc.,  R.  Co.  V.  Felder,  46  Ga.  433;  Jackson  u.  Sacramento  Valley  R.  Co., 
23  Cal.  269;  McCarty  v.  New  York,  etc.,  R.  Co.,  30  Pa.  St.  247;  Chicago^ 
etc.,  R.  Co.  V.  McCool,  26  Ind.  140;  Chicago,  etc.,  R.  Co.  v.  Scott,  42  111. 
132;  Thomas  v.  Boston,  etc.,  R.  Co.,  10  Mete.  (Mass.)  472;  Stowe  v. 
New  York,  etc.,  R.  C,  1 13  Mass.  521 ;  East  Tennessee,  V.  &  G.  Ry.  Co.  v. 
Kelly,  91  Tenu.  699,  708;  20  S.  W.  Rep.  312,  314;  Columbus  &  W.  Ry. 
Co.  V.  Ludden,  89  Ala.  612;  7  So.  Rep.  471  (such  questions  are  for  the 
court  to  decide).  So  where  the  freight  had  been  placed  in  a  public  ele- 
vator, according  to  custom. —  Arthur  v.  St.  Paul  &  D.  Ry.  Co.,  38  Minn. 
95;  35  N.  W.  Rep.  718. 

The  consignee  is  entitled  to  have  a  reasonable  time  after  the  storage 
of  the  goods  in  which  to  remove  them. —  Kirk  v.  Chicago,  etc.,  Ry.  Co. 
(Minnesota),  60  N.  W.  Rep.  1084. 

So  where  it  is  the  duty  of  the  carrier  to  notify  the  consignee  of  the 
arrival  of  the  goods  it  must  give  him  a  reasonable  opportunity  to  remove 
them. 

When  he  resides  at  the  place  of  delivery  the  carrier  must  notify  him 
of  their  arrival.— Penning  v.  First  Div.  St.  Paul,  etc.,  R.  Co.,  19  Minn. 
251;  Spraguev.  N.  Y.  Central  R.  Co.,  52  N.  Y.  637;  Buckley  v.  Great 
Western  R.  Co.,  18  Mich.  121;  Culbreathy  v.  Phila.,  etc.,  R.  Co.,3Hou8t. 
892. 

And  when  it  has  done  so  and  given  the  consignee  a  reasonable  oppor- 
tunity to  remove  them,  its  liability  as  insurer  ceases.—  Whart.  on  Neg., 
§  571;  Roth  V.  Railroad  Co.,  34  N.  Y.  548;  Michigan  Cent.  R.  Co.  v. 
Ward,  2  Mich.  538;  Louisville,  etc.,  R.  Co.  v.  Mahan,8  Bush,  184;  Hasse 
V.  American  Exp.  Co.,  94  Mich.  133;  58  N.  W.  Rep.  918;  Tarbellu.  Royal 
Exch.  S.  Co.,  110  N.  Y.  170;  17  N.  E.  Rep.  721. 

IX  the  consignee  does  not  reside  at  the  place  of  delivery  the  carrier 


CARRIKUS.  Hi] 

ejection  r>  di-fincs  u  reccivinir-hoiise.  Section  <>  saves  uU 
special  conti  acts  ;  but  it  has  been  lu'ld  that  the  mere  fact  of 
the  existence  of  a  8i)ecial  contract  not  inconsistont  with  the 
provisions  of  section  1  does  not  prevent  the  operation  of 
tiiat  section  (s).  By  section  7  the  extni  charges  may  be 
recovered  with  the  damages.  By  section  8  "  nothing  in 
this  Act  shall  be  deemed  to  i)rotect  any  mail  contractor, 
stage-coach  proprietor,  or  other  common  carrier  for  hire 
from  liability  to  answer  for  loss  or  injury  to  any  goods  or 
articles  whatsoever  arising  from  the  felonious  acts  of  any 
coachman,  guard,  book-keeper,  porter,  or  other  servant  in 
his  or  their  employ,  nor  to  protect  any  such  coachman, 
guard,  book-keeper,  or  other  servant  from  liability  for 
any  loss  or  injury  occasioned  by  his  or  their  own  personal 
neglect  or  misconduct"  ((). 


(»)  Bnxcndalc  v.  Great  East.  Ry.  Co.,  felony  be  proved,   Great  W.  Uy.  Co.  v. 

I..  K.  4y.  11.244;  98  L.  J.  Q.  H.  137.  Uiinmell,  18  C.  B.  .ITS;  27  L.  J.  C.  T.  201; 

(0  As  to  who  is  a  servant  within  the  Metcalfe  r.  I^ondon,  Brighton  and  South 

ineanin);  of  llils   section,  sec  Maclm  r.  Coast   Uy.  Co.,  ib.    -20^.    As  to  what    Is 

Ixjndonand  S.  W.  Uy.  Co.,  2  Exch.  415.  It  euftlclcnt  evidence  of  a  felony,8uo  Boyco 

Is  unnecessary  in  a  case  where  the  stat-  r.  Chapman,  2    BIng.  N.  C.    222 ;  Great 

uto  Is  relied  on  to  prove  negligence  if  Western    Ky.  Co.    r.   KlmmcU,   supra; 

must  endeavor  to  ascertain  his  residence,  and  failing  in  tliis  alter  due 
luqniry  it  will  not  be  liable  as  insurer. —  Pelton  v.  Rensselaer,  etc.,  B. 
Co.,  64  N.  Y.  214. 

As  warehouseman  it  is  bound  to  properly  store  the  goods  and  is  liable 
for  its  own  neplij^ence  or  that  of  its  servants. 

It  is  not  liable  for  the  destruction  of  the  poods  by  accidental  lire. — 
Francia  v.  Dubuque,  etc.,  II.  Co.,  25  la.  GO;  Fenner  v.  Buffalo,  etc.,  H. 
Co.,  44  N.  Y.  505. 

Or  lire  caused  by  the  act  of  its  servants  when  not  acting  within  the 
scope  of  their  employment. —  Aldrich  t;.  The  Boston,  etc.,  li.  Co.,  100 
Mass.  31;  Francis  v.  Dubuque,  etc.,  R.  Co.,  25  la.  GO. 

Where  the  shipper  has  been  notified  that  his  freight  is  stored  subject 
to  his  order  and  at  his  risli,  the  railroad  compiiuy  is  bound  to  use  the 
same  diligence  to  preserve  it  that  it  would  towards  its  own  property, 
under  similar  circumstances. —  E.  O.  Standard  Milling  Co.  t;.  While  Line 
C.T.  Co.,  122  Mo.  258;  2G  S.  W.  Rep.  704. 

And  it  has  been  held  that  its  duties  do  not  require  it  to  lieep  a  night- 
watch.— Kronshage  V.  Railroad  Co.,  40  Wis.  587;  Bennett  r.  The  Guid- 
ing Star,  53  Fed.  Rep.  036. 


342 


MORE  THAN  ORDINARY  CARE. 


If  the  customer  tenders  a  reasonable  sum  for  the  carriage 
of  o'oods,  it  has  been  thought  that  the  carrier  cannot  refuse 
to  carry  them  (u).  He  has  no  right  to  say  that  he  will  not 
[273]  carry  them  except  under  a  special  contract,  how- 
ever reasonable;  at  all  events,  where  the  goods  are  such 
as  he  professes  to  carry  (x). 

[274]  In  dealing  with  the  question  of  the  liabilities  of 
carriers,  it  must  be  understood  that  their  liabilities  might 
always  be  [275]  varied  by  express  agreement,  and  that 
it  is  not  our  intention,  for  reasons  already  given  (y),  to 
discuss  the  effect  of  [276]  the  different  modes  of  limita- 
tion of  liability  which  have  from  time  to  time  been  adopted. 
It  is  sufficient  to  say  that  in  the  case  of  railway  companies, 
the  practice  of  making  contracts  exempting  them  from  all 
liability  for  negligence  of  any  kind,  became  so  frequent  {z} 
that  some  restriction     [277]     upon  which  contracts  had  to 


Metcalfe  v.  London,  Brighton  and  South 
Coast,  supra;  Vaughton  v.  London  aad 
N.  W.  Ry.  Co.,  L.  R.  9  Ex.  93;  43  L.  J. 
Ex.  75;  McQueen  v.  Great  West.  Ry.  Co., 
L.  R.  10  Q.  B.  569;  44  L.  J.  Q.  B.  130. 

(m)  And  even  being  ready  and  willing 
o  pay  is  sufficient,  see  Pickford  v. 
Grand  Junction  Ry.  Co.,  8  M.  &  W.  372. 

(x)  Per  Parke,  B.,  la  Carrv.  Lanca- 
shire and  York  Ry.  Co.,  7  Exch.  707,  and 
see  the  same  Judge  in  Johnson  v.  Mid- 
land Ry.  Co.,  4  Exch.  367:  I  cannot  And 
that  any  action  has  ever  been  brought 
on  the  Htrength  of  tills  dictum.  The 
above  case  was  tried  in  1852,  and  the 
Railway  and  Canal  Traffic  Act  allowing 
reasonable  contracts  was  passed  in  1854, 
and  probably  it  would  now  be  held  that 
a  carrier  had  a  right  to  demand  that  a 
reasonable  special  contract  should  be 
made;  and  this  has  evidently  been 
assumed  in  several  cases.  Horn  v.  Mid- 
land Ity.  Co.,  42  L.  J.  C.  P.  59;  L.  R.  8  C 
P.  131.  Railway  companies  may,  by 
notice,  refuse  to  carry  animals  except  by 
special  contract,  Richardson  v.  N.  E.  Ry. 
Co.,  I^  R.  7  C.  P.  80.  Drovers  of  cattle 
sometimes  agree  to  travel  at  their  own 
risk,  McCawley  v.  Furness  Ry.  Co.,  L.  R. 
8  Q.  U.  57 ;  42  L.  J.  Q.  B.  4 ;  GalUn  v.  Lon- 
don and  N.  W.  Ry.  Co.,  L.  R.  10  Q.  B. 


212;  44  L.  J.  Q.  B.  89;  Hall  v.N.E.  Ry. 
Co.,  L.  R.  10  Q.  B.  434;  45  L.  J.  Q.  B.  164. 
See,  however,  Munster  v.  S.  E.  Ry.  Co., 
4  C.  B.  N.  S.  676;  27  L.  J.  C.  P.  308,  which 
was  a  case  of  a  passenger  offering  bun- 
dles to  be  carried.  The  company  made 
a  rule  that  passengers  were  to  see  their 
luggage  labeled,  and  a  rule  that  porters 
were  not  to  label  bundles,  and  they 
refused  to  carry  the  bundles.  It  was 
held  they  were  bound  to  carry  such 
bundles  as  were  personal  luggage.  It 
was  said  that  they  could  not  so  limit 
their  common-law  liability;  but  the 
court  seemed  to  entertain  doubt.  See 
p.  697  of  the  report  as  to  whether  they 
could  not  refuse  to  carry  bundles  which 
were  not  personal  luggage. 

(y)  See  ante,  p.  10. 

(s)  Carriers  used  to  post  up  notices 
to  limit  their  liability,  and  these  were 
often  held  to  be  inoperative,  because  the 
party  bringing  the  goods  was  unable  to 
read,  Davis  v.  Willan,  2  Stark.  280;  or 
did  not  read,  Kerr  v.  Willan,  ib.  44;  or 
the  notice  was  in  small  type,  Butler  v. 
Hearne,  2  Campb.  415;  or  his  attention 
was  not  drawn  to  it,  Clayton  r.  Hunt,  3 
Campb.  27 ;  Walker  v.  Jackson,  10  M.  & 
W.  173;  see,  also,  cases  as  to  luggage  in 
cloak  rooms,  infra. 


LIMITING    I.IAHII.ITV    IJV    CONTRACT. 


343 


be  placed  by  the  Logislaturo  (a),  and  only  such  contracts 
could  thereafter  bo  made  as  were  just  and  reasonable  (b)^ 
and  signed  by  the  party  (c),  and  only  certain  damaires 
recovered  for  injuries  (d)  to  certain  animals  (t),  unless 
their  value  was  declared. 

A  great  number  of  decisions  have  been  given  upon  the 
question  whether  a  particular  contract  is  just  and  reason- 
able. The  decisions  are  not  always  reconcilable.  Where 
the  contract  seeks  to  exclude  all  liability  on  the  part  of 
llio  carrier,  and  gives  no  option  to  the  consignor  to  pay  a 
higher  rate  and  reserve  his  rights  the  contract  is  unreason- 
able (f);  but  where  the  consignor  chooses  to  have  his 
goods  carried  at  a  cheaper  rate,  and  in  consideration  of 
that  advantage  agrees  to  waive  his  riirhts  to  hold  the  carrier 
liable,  such  a  contract  is  in  general  reasonable  (ff);  but  the 
option  must  be  a  practical  one  before  a  condition  excluding 
all  liability  will  be  held  reasonable  (A);  and  it  would  seem 
that  such  a  condition  extending  to  willful  misconduct,  and 
to  all  liability  whatever,  can  never  be  reasonable  (t),  even 
if  there  be  a  practical  option  (k). 


(a)  See  sect.  7  of  Railway  and  Canal 
Trafflc  Act,  1854,  post. 

(6)  As  to  what  conditions  have  been 
considered  Just  and  reasonable,  the 
cases  infrii,  may  be  consnlted. 

(<•)  Peek  V.  N.  Stall  Uy.  Co.,  11  H.  U 
Cae.  473;  32  L.  J.  Q.  B.  211;  Aldridge  r. 
Great  W.  Uy .  Co.,  3a  L.  J.  C.  P.  IGl ;  (sig- 
nature of  agent).  If  consignor  is  setting 
up  contract  it  Is  no  answer  to  say  bo 
has  not  signed  It,  Itaxendalo  v.  Great 
Enbt.  Uy.  Co.,  L.  U.  4  Q.  IJ.  244;  38  L.  J. 
(i.  H.  1,37. 

{(I)  Loss  of  value  fronl  want  of  food 
l8  an  "Injury,"  Allday  v.  Great  W.  Uy. 
Co.,  ,34  I..  J.  Q.  n.  .5.  Whether  loss  of 
market  Is,  qiurre,  Ueal  v.  S.  Devon  Ry. 
Co.,  5  H.  &  N.  875;  aff.  3  U.  &  C.  337; 
Ilearno  v.  London  and  S.  W.  Ry.  Co.,  10 
Exch.  793. 

(e)  Dogs  are  Included,  see  Harrison 
V.  London,  Rrighton  and  South  Coast 
Ry.  Co..  31  L.  J.  Q.   B.  113. 


(/)  Gregory  r.  West  Midland  Ry.  Co., 

33  L.  J.  K.\.  15.");  Brown  f  Manchester 
and  Shcffleld  Ry.  Co.,  10  Q.  B.  1).  250  (no 
exception  even  for  willful  niisronduct) ; 
Booth  i:  N.  E.  Uy.  Co.,  L.  U.  2  Kx.  133; 
36  L.  J.  Ex.  83;  Allday  r.  G.  W.  Ry.  Co., 

34  L.  J.  ^^  B.  r, ;  5  B.  &  S.  903 ;  McManus  r. 
I^ncashlrc  and  Yorkshire  Ry.  Co.,  28  1,. 
J.  Ex.  353;  Peek  r.  North  Staffordshire 
Ry.  Co.,  32  L.  J.  Q.  B.  241 ;  McCann  r.  L. 
ft  N.  W.  Ry.  Co.,  31  L.  Ex.  66;  [see  pott, 
pp.  344  it  scg]. 

(g)  Lewis  f.  G.  W.  Ry.  Co.,  3  Q.  B.  D. 
195;  Simons  r.  G.  W.  Uy.  Co.,  26  L.  J.  C. 
P.  25;  [sec  post,  pp.  344  et  teg]. 

ih)  Brown  v.  M.  S.  and  L.  Uy.  Co-, 
tupra,  reversed  on  tho  farts,  8  Ap.  Cas. 
703;  [see  pott,  pp.  341  etteg]. 

(»)  Per  Brett  and  Baggallay,  l^  JJ.  in 
Brown  r.  M.  S.  and  L.  Uy.  Co.,  tupra, 

(k)  Asbenden  r.  L.  B.  and  S.  C.  Ry. 
Co.,  42  L.  T.  N.  8.  173. 


344  MORE  THAN  ORDINARY  CARE. 

[278]     Exemptions  from  liability  unless  complaint  of  the 
loss  was  made  at  ouce  (?)  ;  from  liability  for  loss  of  market 

(i)  Lewis  V.  G.  W.  Ry.  Co.,  29  L.  J.  Ex.  426;  5  H.  &  N.  867. 


Limiting  Liability.  —  A  common  carrier  may  limit  its  liability  by  con- 
tract, but  it  cannot  thereby  relieve  Itself  from  the  consequences  of  its 
own  negligence. 

Alabama.  —  South  &  North  Ala.  R.  Co.  v.  Henlein,  52  Ala.  606 ;  Lonis- 
ville  &  N.  R.  Co.  v.  Grant,  99  Ala.  325;  13  So.  Rep.  598;  Alabama  G.  S.  R. 
Co.  V.  Thomas,  83  Ala.  343;  3  So.  Rep.  802;  Louisville  &  N.  R.  Co.  ». 
Oden,  80  Ala.  38. 

Arkansas.  —  Little  Rock,  etc.,  R.  Co.  v.  Talbot,  39  Ark.  523. 

Colorada.  —  Merchants'  Despatch  Co.  v.  Comforth,  3  Colo.  280. 

Connecticut. — Camp  v.  Hartford,  etc.,  Steamboat  Co.,  43  Conn.  333. 

Georgia.  —  Georgia,  etc.,  R.  Co.  v.  Gann,  68  Ga.  350. 

Illinois.  —  Illinois  Central  R.  Co.  v.  Adams,  42  111.  474;  Wabash  R.  Co. 
e.  Brown,  152  111.  484;  39  N.  E.  Rep.  273;  Chicago  &  N.  W.  Ry.  Co.  v. 
Chapman,  133  111.  96;  24  N.  E.  Rep.  417. 

Indiana.  —  United  Express  Co.  v.  Harris,  51  Ind.  127;  Indianapolis,  D, 
&  W.  Ry.  Co.  V.  Forsythe,  4  Ind.  App.  326;  29  N.  E.  Rep.  1138. 

Iowa.  —  Hudson  v.  Northern  Pac.  R.  Co.,  60  N.  W.  Rep.  608. 

Kansas.  —  Goggin  w.  Kansas,  etc.,  R.  Co.,  12  Kan.  416. 

Kentucky.  —  Reno  v.  Hogan,  12  B.  Mon.  63. 

Louisiana.  —  Simon  •;;.  The  Fung  Shuey,  21  La  An.  363. 

itfamc  — Willis  v.  Grand  Trunk  R.  Co.,  62  Me.  488. 

Massachusetts.  — Hoadley  v.  Northern  Transp.  Co.,  115  Mass.  304. 

Minnesota.  —SchTiveT  v.  Sioux  City,  etc.,  R.  Co.,  24  Minn.  506;  Ortt 
V.  Minneapolis  &  St.  L.  Ry.  Co.,  36  Minn.  396;  31  N.  W.  Rep.  519. 

Mississippi.  —Chicsigo,  etc.,  R.  Co.  v.  Abels,  60  Miss.  1017;  Johnson 
V.  Alabama  &  V.  Ry.  Co.,  69  Miss.  191 ;  11  So.  Rep.  104. 

Missoxiri.  —  LeonsLTd  v.  Chicago  &  A.  Ry.  Co.,  54  Mo.  App.  293;  Doan 
V.  St.  Louis,  etc.,  Ry.  Co.,  88  Mo.  App.  408;  McFadden  v.  Missouri 
Pac.  Ry.  Co.,  92  Mo.  343;  4  S.  W.  Rep.  689;  Ball  w.  Wabash,  etc.,  Ry. 
Co.,  83  Mo.  574. 

Nebraska.  —  Atchison,  etc.,  R.  Co.  v.  Washburn,  5 Neb.  117;  Atchison, 
T.  &  S.  F.  R.  Co.  V.  Lawler,  40  Neb.  356 ;  58  N.  W.  Rep.  968. 

New  n ampshire.  —  Burgm  v.  American  Exp.  Co.,  20  Atl.  Rep.  328. 

New  Jersey.  — Ashmore  v.  Penn.  R.  Co.,  28  N.  J.  L.  180. 

North  Carolina.  —  Bra-nch  v.  Wilmington,  etc.,  R.  Co.,  88  N.  C.  573. 

Ohio.  —United  States  Express  Co.  v.  Buckman,  28  Ohio  St.  144. 

Oregon.—  Seller  v.  Pacific,  etc.,  R.  Co.,  1  Ore.  409. 

Pennsj/^wania.— Penn.  R.  Co.  v.  Butler,  57  Pa.  St.  335;  Armstrong  v- 
United  States  Exp.  Co.,  159  Pa.  St.  640;  28  Atl.  Rep.  448;  Grogan  v. 
Adams  Exp.  Co.,  114  Pa.  St.  523;  7  Atl.  Rep.  134;  Pennsylvania  R.  Co. 


LIMITING    LIABILITY   BY    CONTUACT.  345 

[279]  only*  not  loss  generally  ( 7n )  ;  from  liability  fur 
«verything  except  •*  gross  negligence  ( interpreted  to  mean 

(m)  WliUc  f.  «.  \V.  Ky.  Co.,  2t>  L,  J.  C.  V.  158. 

V.  Ralordon,  119  Pa.  St.  677;  13  Atl.  Rep.  324;  WlJlock  v.  rennsylvanla 
K.  Co.,  16G  Pa.  St.  184;  30  Atl.  Rep.  948. 

Soutk  Carolina.— \Va.n\ngioTd  v.  Columbia  &  G.  R.  Co.,  2G  S.  C.  258; 
2  8.  E.  Rep.  19. 

Tnmessee. —  Nashville,  etc.,  R.  Co.  v.  Johnson,  (J  Heisk.  271;  Loui.s- 
vUle  &  N.  R.  Co.  V.  Dies,  91  Tenn.  177;  18  S.  W.  Rep.  2GG. 

Texas.— Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Eddlns,  7  Tex.  Civ.  App.  110;  26 
8.  W.  Rep.  IGl;  Atchison,  II.  &  S.  F.  Ry.  Co.  v.  Grant,  G  Tex.  Civ.  App. 
674.  2G  S.  W.  Rep.  28G;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Ball,  80  Tox. 
602;  IC  S.  \V.  Rep.  441;  Missouri  Pac.  Ry.  Co.  v.  Cornv?all,  70  Tex. 
€11;  8  S.  W.  Rep.  312;  Missouri  Pac.  Ry.  C.>.  r.  Harris,  67  Tex.  1G6;  2 
S.  W.  Rep.  574. 

Virginia. —  VirKJuia,  etc.,  R.  Co.  v.   Sayers,  26  Gratt.  328. 

Wisconsin. —  Abrams  v.  Milwaukee,  etc.,  R.  Co.,  87  Wis.  485;  58  N. 
W.  Rep.  780. 

Federal  Courts.— The  Hugo,  57  Fed.  Rep.  403;  Monroe  v.  The  Iowa, 
50  Fed.  Rep.  5GI;  Schulze-Berge  v.  The  Guildhall,  58  Fed.  Rep.  796; 
■■"  ^nias  r.  Wabash,  etc.,  Ry.  Co.,  63  Fed.  Rep.  2C0. 

''niud  Slates  Court.—  Bank  of  Ky.  v.  Adams  Kxp.  Co.,  93  U.  S.  174; 
lilailroail  Co.  r.  Lockwood,  17  Wall.  3.17. 

In  some  few  States  it  has  been  held  that  the  carrier  may  limit  its  lia- 
bility for  damages  caused  by  its  own  ne;:ligence. —  Si)iuatti  v.  Alias  S.  S. 
Co.,  81  N.  Y.  71;  Wescott  v.  Fargo,  61  N.  Y.  542;  Baltimore,  etc.,  R.  Co. 
V.  Skeels,  3  W.  Va.  556;  Farmer's,  etc..  Bank  v.  Cbamplain  Transp.  Co., 
23  Vt.  186;  Wilson  v.  The  New  York  Central,  etc.,  R.  Co.,  97  N.  Y.  87. 

In  many  cases  contracts  in  the  nature  of  agreed  valuation  in  case  of 
loss  caused  by  the  carrier's  negligence,  in  consideration  of  reduced 
freight  rates,  have  been  sustained. —  Alair  v.  Northern  Pac.  R.  Co.,  53 
Minn.  160;  54  N.  W.  Rep.  1072;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Weak- 
ley, 60  Aik.397;  8  S.  W.  Rep.  134;  Hill  v.  Boston,  etc.,  R.  Co.,  144  Mass. 
284;  Western  Ry.  of  Ala.  v.  Harwell,  97  Ala.  341 ;  11  So.  Rep.  781 ;  John- 
Mone  r.  Richmond  &  D.  R.  Co.,  39  S.  C.  55;  17  S.  E.  Rep.  512;  Louis- 
ville &  N.  R.  Co.  V.  Sherrod,  84  Ala.  178;  4  So.  Rep.  29.  But  see  Amboch 
».  Baltimore  &  0.  R.  Co.,  30  Wkiy.  Law  Bui.  GG5;  Pennsylvania  R.  Co.  v. 
Weiller,  (Pa.),  19  All.  Rep.  702;  26  W.  N.  C.  27. 

It  cannot  by  a  general  notice  limit  its  liability.—  Stater.  Townsend, 
87  Ala.  247;  Michigan,  etc.,  R.  Co.  v.  Heaton,  31  Ind.  397;  Kimball  r. 
Rutland,  etc.,  R.  Co.,  26  Vt.  247;  Moses  v.  Boston,  etc.,  R.  Co.,  32  N.  II. 
628;  Smith  r.  N.  Carolina  R.  Co.,  64  N.  C.  235;  Wallace  r.  Matthews,  3;i 
Ga.  617;  New  Orleans,  etc.,  Ins.  Co.  v.  New  Orleans,  etc.,  R.  Co.,  20  Li. 
Ann.  302. 


346  MORE   THAN   ORDINARY    CARE. 

ordinary    negligence)  or  fraud"    (?i)  ;    from   liability   in 
respect  of  goods  damaged  beyond  the  limits  of  the  com- 

(7>)  Beal  V.  South  Devon  Ry.  Co.,  3  H.  &  C.  337. 

la  order  that  it  may  limit  its  liability  by  a  notice  in  a  receipt,  it  must 
be  sbown  that  it  was  assented  to  by  the  shipper  (Southern  Express  Co. 
V.  Crook,  44  Ala.  468;  Peck  v.  Weeks,  34  Conn.  145;  Southern  Express 
Co.  V.  Newby,  36  Ga.  635;  Illinois  Cent.  K.  Co.  v.  Frankenberg,  54  111.  88; 
Little  V.  Boston,  etc.,  R.  Co.,  66  Me.  239;  Buckland  ?;.  Adams  Express 
Co.,  97  Mass.  124;  Levering  v.  Union  Trans.,  etc.,  Co.,  42  Mo.  88;  Moses 
V.  Boston,  etc.,  R.  Co.,  24  N.  H.  71 ;  Smith  v.  North  Carolina  R.  Co.,  64 
N.  C.  255;  Munn  v.  Birchard,  49  Vt.  326;  Louisville  &  N.  R.  Co.  v. 
Meyer,  8  Ala.  597;  Central  R.  Co.  v.  Dwight  Mfg.  Co.,  75  Ga.  609;  Mer- 
chants Despatch  Transp.  Co.  v.  Firthman,  149  111.  66;  36  N.  E.  Rep.  624, 
affirming  47  111.  App.  561;  Central  R.  &  B.  Co.  v.  Hasselkus,  91  Ga.  382; 
17  S.  E.  Rep.  838)  ;  or  brought  to  his  knowledge  (Sager  v.  The  Ports- 
mouth, etc.,  R.  Co.,  31  Me.  228;  The  Camden,  etc.,  R.  Co.  v.  Baldauf, 
16  Pa.  St.  67;  Laing  v.  Colder,  80  Pa.  St.  479;  Rorer  on  Railway 
Cos.,  p.  1252;  Angell  on  Carriers,  §  247)  ;  when  the  burden  of  proof  to 
establish  it  is  on  the  carrier. —  Sager  v.  The  Portsmouth,  etc.,  R.  Co., 
supra. 

The  posting  of  notices  in  the  office  of  the  company,  it  has  been  held, 
does  not  raise  the  presumption  of  knowledge  of  their  contents,  nor  the 
acceptance  of  a  receipt,  of  the  assent  of  the  shipper. —  Hollister  v.  Now- 
len,  19  Wend.  254;  Railroad  Co.  v.  Manufacturing  Co.,  16  Wall.  319. 

And  in  Illinois  the  acceptance  of  a  receipt  or  bill  of  lading  by  the  ship- 
per does  not  raise  such  presumption. —  Anchor  Line  v.  Dator,  68  Hi.  369; 
Field  V.  Chicago,  etc.,  R.  Co.,  71  111.  458;  Western  Transit  Co.  v,  Hos- 
king,  19  111.  App.  607. 

But  this  is  not  the  general  rule  in  respect  of  a  bill  of  lading,  the  pre- 
sumption being  that  the  shipper  knew  of  the  limitations  contained  there- 
in, and  the  burden  of  proving  his  lack  of  knowledge  thereof  being  upon 
him. —  Sneider  v.  Adams  Express  Co.,  63  Mo.  376;  Robinson  v.  Mer- 
chants' Despatch  Co.,  45  la.  470;  Boorman  v.  American  Express  Co., 
1  Wis.  154. 

As  the  carrier  cannot  contract  for  total  exemption  from  the  conflc- 
quences  of  its  own  negligence,  neither  can  it  contract  for  partial  exemp- 
tion; and  where  the  bill  of  lading  provides  that  the  carrier  will  not  be 
liable  for  loss  or  injury  to  goods  beyond  a  certain  amount,  it  is  liable  for 
their  full  value  when  the  loss  is  caused  by  its  negligence. —  United  States 
Erpress  Co.  v.  Backman,  28  Ohio  St.  144;  Grace  v.  Adams,  100  Mass. 
505;  Adams'  Express  Co.  v.  Stettauers,  61  111.  184.  (But  see  Arnold  p. 
Scholfleld,  83  111.  273);  S.  &.  N.  Ala.  R.  Co.  v.  Henlein,  52  Ala.  606; 
American  Express  Co.  v.  Sands,  55  Pa.  St.  140;  Alabama  Great  Southern 
R.  Co.  V.  Little,  71  Ala.  611;  The  Kansas  City,  etc.,  R.  Co.  v.  Simpson,  30 


LIMlTINd     I.IAHIMTY     liY    CONIItACT.  347 

pany's  railway  where  no  rewiird  is  eunud  in  respect  of 
carriiij]^e  on  the  line  where  sucli  loss  occurred  (o);  from 
lability  unless  the  viihie  of  the  <;o()(ls  is  dechired  where  thf 
exemption  from  liability  does  not  iiulude  willful  miscon- 
duct (p),  have  all  been  held  reasonable. 

[280]  Upon  the  other  hand,  the  following  conditions 
have  been  held  unreasonable:  A  condition  not«to  be  liabh; 
for  packages  insulliciently  packed  (q),  not  to  be  liable 
for  packages  charged  as  empties  (r).  The  words  "at 
owner's  risk  "  (.s)  and  "  the  company  accepting  no  responsi- 
bility "  (f)  have  been  held  not  to  absolve  the  company  from 
liability  (u). 

o)  AMrMKC  f.  G.  W.  Uy.  Co.,  33  L.  R.  9  C.  P.  325;  Uoblneon  r.  G.  W.  Ry.  Co., 

J.  V.  V.  101  3.^  L.  J.  C.  P.  12:i;  McCnnn  r.  L.  &  N.  W. 

{p^  Harrison    r.  L.  R.  and  S.   C.  Uy.  Ry.  Co.,  31  I>.  J.  Ex.65. 
Co.,  31  I..  J.Q.  U.  113;  [8(epo«<,p.280].  (0  .Martin  c.  G.  In.  Pen.  Ry.  Co.,  L. 

^)}^  .Simone  r.  G.  W.  Ry.  Co.,  20  L.  J.  R. :?  Ex.  9. 
0.  P.  25;  (iarton  v.  Bristol  and  Ex.  Ry.  (m)  As  to  the  moaning  of  an  exemp- 

Oo.,30  I^  J.  Q.  B.  273.  tlon  from  lliihillty  for  "  detention,"  .see 

(r)  Aldcidge   v.  G.  W.  Ry.  Co.,  13  L.  Gordon  f.  G.  W.  Ry.  Co.,  8  Q.  B.  D.  M 

J.  C.  P.  161.  (held  not  to  Include  wronfrfal  refusal  to 

(«)  D'Arc  f.  L.  &  N.  W.  Ry.  Co.,  L.  deliver);  [ace post,  p.  MS]. 

Kan.  645;  Moulton  v.  St.  Paul  R.  Co.,  31  Minn.  85;  Baughman  v.  Louis- 
ville, etc.,  R.  Co.,  94  Ky.  150 ;  21  S.  W.  Rep.  757 ;  Eells  v.  St.  Lools,  etc., 
Ry.  Co.,  52  Fed.  Rep.  903;  International  &  G.  N.  R.  Co.  v.  Anderson,  3 
Tex.  Civ.  App.  8;  21  S.  W.  Rep.  G91 ;  Taylor,  B.  &  H.  Ry.  Co.  v.  Mont- 
j!omer.y  (Texas),  16  S.  W.  Rep.  178;  Adams  Express  Co.  r.  Harris,  120 
Ind.  73;  21  N.  E.  Rep.  340;  Adams  Express  Co.  v.  Iloeins,  88  Ky.  373; 
11  S.  W.  Rep.  20.-j;  Adams  Express  Co.  v.  Holmes  (Pa.),  9  Atl.  Rep.  U\C,. 

But  where  the  shipper  does  not  disclose  the  value  or  character  of  the 
goods  to  be  transported  when  the  carrier  requires  .such  disclosure  to  be 
made,  and  they  are  lost  or  stolen,  the  carrier  will  not  he  liable. —  Everett 
V.  Southern  Express  Co.,  4(5  Ga.  303;  Coxe  v.  Ilel.sl.-y,  19  Pa.  St.  243;  St. 
John  r.  Express  Co.,  1  Woods,  012;  The  Bermuda,  23  Blatch.  554;  27  Fed. 
Rep.  47fi.     But  see  Conover  v.  Pacific  Exp.  Co.,  40  Mo.  App.  31, 

Conditions.— Conditions  as  to  the  time  and  manner  of  presenting 
claims  fo*  damages  have  been  held  reasonable. —  Dawson  r.  St.  Louis  R. 
Co., 76  Mo.  514;  Express  Co.  v.  Caldwell,  21  Wall.  264;  United  Express 
Co.  V.  Harris,  51  Ind.  127;  The  Santee,  2  Ben.  519;  Gulf,  C.  &  S.  F.  Ry. 
Co.  r.  Clir-ke,  5  Tex.  Civ.  App.  547;  24  S.  W.  Rep.  355;  Selby  v.  Wil- 
mington &  W.  R.  Co.,  113  N.  C.  588;  18  S.  E.  Rep.  88;  Ft.  Worth  &  D.  C. 
Ry.  Co.  V.  Greathouse,  82  Tex.  104;   17  S.  W.Rep.  834. 

A  condition  that  a  carrier  should  not  be  held  kable  for  damage  or  loss 


348  MOKE  THAN  ORDINARY  CARE. 

[281]  With  respect  to  the  carriage  of  horses,  it  has  been 
held,  in  accordance  with  the  principle  above  stated,  viz., 

of  goods,  unless  a  claim  therefor  should  be  made  within  ninety  days  from 
the  time  of  their  receipt,  has  been  held  reasonable. —  Express  Co.  v. 
Caldwell,  21  Wall.  264. 

Or  unless  the  claim  therefor  shall  be  made  within  thirty  days.— 
Hirschberg  v.  Dinsmore,  67  How.  (N.  Y.)  Pr.  103. 

Or  unless  the  claim  is  presented  in  writing,  at  the  carrier's  office, 
within  thirty  days  after  the  time  when  the  property»is  or  ought  to  have 
been  delivered. —  Weirt?.  Express  Co.,  5  Phila.  355. 

Or  unless  claim  therefor  should  be  made  in  writing,  at  the  office  of 
shipment,  within  thirty  days  from  the  day  of  receipt. —  United  Express 
Co.  V.  Harris,  51  Ind.  127. 

Or  unless  the  claim  be  made  in  writing  within  thirty  days  after  the  loss 
occurs. —  Armstrong  v.  Chicago,  etc.,  Ry.  Co.,  53  Minn.  183;  54 N.  W. 
Rep.  105.  Or  five  days,  Black  v.  Wabash,  etc.,  Ry.  Co.,  Ill  HI.  351;  or 
forty  days,  McCarty  v.  Gulf,  etc.,  Ry.  Co.,  79  Tex.  33;  15  S.  W.  Rep.  164. 

A  condition  that  claims  for  damages  should  be  made  before  the  goods 
are  removed  from  the  station  is  reasonable. —  Capehart  v.  Seaboard, etc., 
R.  Co.,  77  N.  C.  355. 

Such  conditions  have  been  held  reasonable. 

So  also  a  stipulation  in  a  bill  of  lading  by  one  of  a  line  of  carriers  that 
the  company  in  whose  possession  the  goods  are  at  the  time  of  loss  or 
damage,  shall  alone  be  liable,  is  reasonable. —  Phifer  v.  Carolina  Central 
Ry.  Co.,  88  N.  C.  311;  45  Am.  Rep.  687. 

And  that  the  carrier  which  is  legally  liable  for  any  damages  shall  have 
the  benefit  of  any  insurance  effected  upon  the  damaged  goods. —  Ran- 
toul  V.  New  York  Central,  etc.,  R.  Co.,  17  Fed.  Rep.  905. 

And  that  a  carrier  shall  not  be  liable  for  loss  by  fire  unless  caused  by 
its  negligence.— Little  Rock,  etc.,  Ry.  Co.  v.  Talbot,  39  Ark.  523;  Davis 
r.  Central  Vermont  R.  Co.,  66  Vt.  290;  29  Atl.  Rep.  313. 

That  "  in  case  of  loss,  damage  or  non-delivery,  the  ship-owner  shall 
not  be  liable  for  more  than  the  invoice  value  of  the  goods."  — The  Hadgi, 
18  Fed  Rep.  459. 

Or  that  the  carrier  shall  not  be  liable  beyond  a  certain  amount  for  the 
loss  of  goods  unless  their  true  value  is  stated. —  Muser  v.  Holland,  17 
Blatchf.  C.  Ct.  412. 

Though  the  loss  is  caused  by  its  negligence. —  Id. 

Unreasonable  Conditions. —  The  following  conditions  have  been  held 
unreasonable:  — 

That  a  claim  for  loss  must  be  made  when  the  goods  are  delivered, 
where  the  claim  is  made  within  a  reasonable  time  after  the  lo.«s  is  ascer- 
tained.—Memphis,  etc.,  R.  Co.  V.  Holloway,  9  Baxter,  188.  See  Smitba 
V.  Louisvill.'  &  N.  R.  Co.,  2  Pick.  (86  Tenn.)  198;  6  S.  W.  Rep.  209. 

A  provision  in  a  contract  of  shipment  that  any  claim  thereunder  should 


RAILWAY   COMPANIES  —  CONDITION8.  349 

that  where  the  contract  excludes  all  Iiul>ility,  and  gives  no 
piactiail  option  to  the  conaifriior,  such  a  contract  is  unrea- 
.souublc,  tiiat  a  condition  that  the  owner  of  horses  nliould 
take  all  risks,  as  the  company  will  not  1)0  respon.sihlc 
for  any  .injury  or  damage,  howsoever  caused,  to  live 
stock  of  any  description  is  unreasonable  (x).  A  contract 
not  to  bo  liable  for  loss  or  damage  to  any  horse  or  dog, 
unless  a  declaration  of  value  is  made,  is  reasonable  if  it 
Iw  so  construed  that  the  company  are  still  to  be  held 
liable  for  willful  misconduct  (//).  The  com[)any  cannot 
[282]  exempt  themselves  from  the  duty  of  providing  safe 
carriage  for  the  conveyance  of  horses,  or  shift  the  duty  of 
examining  into  their  soundness  upon  the  consignor  (2). 

By  section  7  of  the  Railway  and  Canal  Traffic  Act, 
"  every  such  company,  as  aforesaid,  shall  be  liable  for  the 
loss  of,  or  for  any  injury  done  to  any  horses,  cattle,  or 
other  animals,  or  to  any  articles,  goods,  or  things  in  the 

(r)  McManus   r.  L.  and   Y.  Ry.  Co.,  (j/)  Ilarrisonv.  L.  R.  andS. C. By.Co., 

nprti;  McCann  t>.  L.  and  N.  W.  Ky.  Co.,       supra;  [see  post,  pp.  2S5-iS6). 
**pru;   Gregory  v.  West   AMd.  Ky.  Co.,  (.)  McManus   v.    L.    &   Y.    Ry.    Co., 

tn/rii.  suprii;  CircRory  v.  West  Md.  Ry.  Co.,  33 

L.  J.  Kx.  15ij. 

be  presented  within  sixty  days  from  its  date,  without  reference  to  the 
time  of  the  loss,  i^^  unreasonable.  —  Pacillc  Express  Co.  v.  Darnell 
(Texas),  C  S.  W.  Rep.  7C5.  See  Central  Vermont  li,  Co.  v.  Soper,  5'J 
Fed.  789;  8  C.  C.  A.  341. 

So  is  a  limitation  of  thirty-six  hours  from  the  time  of  tlie  delivery  of 
the  gooils.—  Jenu inns  v.  Grand  Trunli  Ky.  Co.,  li'?  N.  Y.  438;  28  N.  E. 
Hep.  394,  alilriuing  5  N.  Y.  S.  Rep.  140. 

A  regulation  of  a  railroad  company  posted  in  its  depot  requiring  all 
claims  for  damages  to  be  made  within  ten  days  after  delivery  at  the  sta- 
llon.— Browning  v.  Tory  Island  R.  Co.,  2  Daly,  117. 

Not  to  assume  any  liability  above  a  certain  amount. —  Moulton  v.  St. 
Paul,  etc.,  Ry.  Co.,  31  Minn.  85. 

That  before  a  consignee  can  obtain  his  wheat  from  tlie  company's  bins 
he  must  receipt  for  the  quantity.— Christian  v.  St.  Paul,  etc.,  R.  Co.,  20 
Minn.  21. 

That  a  passenger  on  a  steamboat  shall  not  take  iut<j  hl.s  state-room 
•such  baggage  as  he  may  require  for  his  personal  use. —  Mackin  c.  New 
iJersey  Steamboat  Co.,  7  Abb.  Pr.  (n.  s.)  229. 


350  MORE  THAN  ORDINARY  CARE. 

receiving,  forwarding,  or  delivering  thereof,  occasioned  by 
the  neorlect  or  default  of  such  company  or  its  servants, 
notwithstanding  any  notice,  condition,  or  declaration  made 
and  given  by  such  company  contrary  thereto,  or  in  any- 
wise limiting  such  liability  ;  every  such  notice,  condition, 
or  declaration  being  hereby  declared  to  be  null  and  void; 
Provided,  always,  that  nothing  herein  contained  shall  be 
construed  to  prevent  the  said  companies  from  making  such 
conditions  with  respect  to  the  receiving,  forwarding  and 
delivering  of  any  of  the  said  animals,  articles,  goods  or 
things  as  shall  be  adjudged  by  the  Court  or  judge  before 
whom  any  question  relating  thereto  shall  be  tried,  to  be 
just  and  reasonable:  Provided  always,  that  no  greater 
damages  shall  be  recovered  for  the  loss  of  or  for  any  injury 
done  to  any  such  animals  beyond  the  suras  hereinafter 
mentioned  (that  is  to  say),  for  any  horse,  fifty  pounds  ;  for 
any  neat  cattle,  per  head,  fifteen  pounds  ;  for  any  sheep  or 
pigs,  per  head,  two  pounds,  unless  the  person  sending  or 
delivering  the  same  to  such  company  shall  at  the  time  of 
such  delivery  have  declared  them  to  be  respectively  of 
higher  value  than  as  above  mentioned,  in  which  case  it 
shall  be  lawful  for  such  company  to  demand  and  receive  by 
way  of  compensation  for  the  increased  risk  and  care  thereby 
occasioned,  a  reasonable  percentage  upon  the  excess  of  the 
value  so  declared  above  the  respective  sum  so  limited  as 
aforesaid,  and  which  shall  be  paid  in  addition  to  the 
[283]  ordinary  rate  of  charge,  and  such  percentage  or 
increased  rate  of  charjre  shall  be  notified  in  the  manner 
prescribed  in  the  statute  eleventh  George  Fourth  and  first 
William  Fourth,  chapter  sixty-eight,  and  shall  be  biiidiug 
upon  such  company  in  the  manner  therein  mentioned: 
Provided  also,  that  the  proof  of  the  value  of  such  animals, 
articles,  goods,  and  things,  and  the  amount  of  the  injury 
done  thereto,  shall  in  all  cases  lie  upon  the  person  claiming 
compensation  for  such  loss  or  injury:  Provided  also,  that 
no  special  contract  between  such  company  and  any  other 


RAILWAY    COMPANIES LIVE    STOCK.  351 

])arties  respecting  the  rcceiviupj,  forwarding  or  delivering 
of  any  nuimals,  articles,  goods  or  things,  as  nforcHiiid, 
shall  be  binding  uiK>n  or  affect  any  such  party,  unk'ss  the 
same  bo  signed  by  him  or  by  the  pcMson  delivering  such 
:inimals,  articles,  goods  or  things,  rt'sp<'c(ivoly,  for  car- 
liage:  Provided  also,  that  nothing  therein  contained  shall 
alter  or  affect  the  rights,  privileges,  or  liabilities  of  any 
such  company  under  the  said  Act  of  the  eleventh  George 
Fourth  and  tirst  William  Fourth,  chapter  sixty-eight,  with 
loapect  to  articles  of  the  description  mentioneil  in  the  said 
A6t."  The  Railway  and  Canal  TraflBc  Aet  extends  to 
8team  vessels,  etc.,  where  the  railway  company  undertake 
the  steam  traffic  under  the  26  &  27  Vict.  c.  92,  ss.  30,  31. 
As  to  liabilities  of  railway  companies  during  sea  transit, 
see  31  &  32  Vict.  c.  11  ;  34  &  35  Vict.  c.  78,  s.  12. 

Where  an  injuiy  happened  before  the  special   contract 
under   the    section    could    be  made,  it  was  held   that   the 


Live  Stock. —  Carriers  are  insurers  of  live  stock  to  the  same  extent 

M  of    goods.— SouUi  .\Iabama,   etc.,  R.    Co.  r.   Ilenlein,  52   Ala.    (iOC; 

Georgia  R.  Co.    v.  Spears,  OG  Ga.  485;  Ai;new  v.  The  Contra  Costa,  27 

Ctl.  425;  East  Tennessee  R.  Co.  v.  Whittle,  27  Ga.  535;  Ohio,  etc.,  R. 

Co.  V.  Dunbar,  20  111.  623;  German  r.  Chicapo,  etc.,  R.  Co.,  38  la.  127; 

Kansas,  etc.,  R.  Co.  v.  Nicholls,  9  Kan.  235;  Kimball  v.  Rutland,  etc.,  R. 

Co.,  26  Vt.  247;  Wilson  v.  Hamilton,  4  Ohio  St.  722;  Cragin  v.  New  York, 

••tc.,  R.  Co.,  51  N.  y,  «1;  Missouri  Pac.  Ry.  Co.  r.  Harris,  f.7  Tex.  IGG; 

Hoan  p.  St.  Louis,  etc.,  Ry.  Co.,  38  Mo.  App.  408;  Lindsley  v.  Chicago, 

.  R.  Co.,  3G  Minn.  539;  33  N.  W.  Rep.  7.     (It  has  been  held  in  some 

•s  that  tlioy  are  not. —  Michigan  Southern,  etc.,  R.  Co.  v.  McDon- 

1,   21  Mich.    1G5;  Louisville,  etc.,  R.  Co.  v.  Hedger,  9   Bush,  G45; 

r  r.  Railroad  Co.,  10  Lea,  304;  2  Rorer  on  Railways,  p.  1299,  §  27.) 

liut  they  are  not,  in  the  absence  of  a  special  contract,  liable  for  dara- 
i:  s  caused  by  their  vicious  habits  or  propensities. —  Micliigan,  etc.,  R- 
Co.  r.  McDonough,  21  Mich.  1G5;  Hall  v.  Renfro,  3  M<tc.  (Ky.)  51; 
Kansas  Pac.  R.  Co.  v.  Reynolds,  8  Kan.  G23;  Evans  v.  Fitchburg  R.  Co., 
HI  Mass.  142;  Illinois  Cent.  R.  Co.  v.  Scruggs,  (9  Miss.  418;  13  So.  Rep. 
C98;  Louisville,  N.  O.  &  T.  Ry.  Co.  v.  Bigger,  OG  Miss.  319;  C  So.  Rep. 
2.*M.  Or  exceptional  condition  (Missouri  Pac.  Ry.  Co.  v.  Texas  &  P.  Ry. 
Co.,  41  Fed.  Rep.  913);  as  nervousness. —  Coupland  v.  Housatonlc  R. 
Co.,  61  Conn.  531 ;  23  Atl.  Rep.  870, 

Provided  the  carrier  is  itself  not  at  fiiult.— Hall  v.  Renfro,  3  Mete. 


352  MORE   THAN   ORDINARY   CARE. 

[284]  owner  could  only  recover  the  limited  sum,  for  the 
section  protects  the  carrier  during  the  receiving  as  well  as 
when  the  relation  of  carrier  and  customer  is  established  {a). 

(a)  Hodyman  v.  West  Mid.  Ry.  Co.,  33  L.  J.  Q.  B.  233;  aflE.  35  L.  J.  Q.  B.  85 
(horse  kicking  girder). 

(Ky.)  51;  Harris  v.  Northern,  etc.,  R.  Co.,  20  N.  Y.  232;  Welch  v.  Pitts- 
burg, etc.,  R.  Co.,  10  Ohio  St.  65;  Evans  v.  Fitchburgh  R.  Co.,  Ill  Mass. 
142;  East  Tennessee,  etc.,  R.  Co.  v.  Whittle,  27  Ga.  535;  Giblin  v. 
Nationals.  S.  Co.,  28  N.  Y.  S.  Rep.  69;  8  Misc.  Rep.  22. 

Nor  for  damages  to  stock  caused  by  the  negligence  of  the  owner  under 
whose  control  they  are  during  transportation. —  Gleason  v.  Goodrich 
Transportation  Co.,  32  Wis.  85;  Rodericlj  v.  Railroad  Co.,  7  W.  Va.  54. 

(In  Honeyman  v.  Oregon  &C.R.  Co.,  18  Oreg.  352;  10  Pac.  Rep.  628, 
it  was  held  that  a  common  carrier  who  does  not  assume  to  act  as  such  iu 
the  carriage  of  dogs,  but  upon  the  request  of  a  party  consents  to  carry  a 
dog  on  a  particular  occasion,  can  not  be  sued  as  a  common  carrier  for  the 
subsequent  death  of  the  dog  while  under  his  charge,  even  though  money 
may  have  passed  to  defendant's  agent  for  the  carriage ;  and  that  the  action 
must  be  upon  a  private  contract  if  recovery  is  sought.) 

Limiting  Liability. —  In  the  transportation  of  live  stock  the  carrier 
may  limit  its  liability  except  for  negligence. —  Chicago,  etc.,  R.  Co.  v. 
Abels,  60  Miss.  1017;  Dawson  v.  St.  Louis,  etc.,  R.  Co.,  76  Mo.  614; 
South,  etc.,  Ala.  R.  Co.  v.  Henlein,  52  Ala.  606;  Squire  v.  New  York 
Central  R.  Co.,  98  Mass.  239;  Oxley  v.  St.  Louis,  etc.,  R.  Co.,  65  Mo. 
629;  Mitchell  v.  Georgia  R.  Co.,  68  Ga.  644;  Welsh  v.  Pittsburgh,  etc., 
R.  Co.,  10  Ohio  St.  65;  McCoy  v.  Railroad  Co.,  44  la.  424;  St.  Louis, 
etc,  R.  Co.  V.  Piper,  13  Kan.  510;  Boehl  v.  Chicago,  etc.,  Ry.  Co., 
44  Minn.  191;  46  N.  W.  Rep.  333;  Taylor,  B.  &  H.  Ry.  Co.  v. 
Montgomery  (Texas),  16  S.  W.  Rep.  178;  Doan  v.  St.  Louis, 
etc..  By.  Co.,  38  Mo.  App.  408;  Alabama  G.  S.  R.  Co.  v.  Thomas, 
83  Ala.  343 ;  3  So.  Rep.  802 ;  Missouri  Pac.  Ry.  Co.  w .  Harris,  67  Tex.  166 ; 
2  S.  W.  Rep.  574;  Eells  v.  St.  Louis,  etc.,  Ry.  Co.,  52  Fed.  Rep.  903;  Ft. 
Worth  &  D.  C.  Ry.  Co.  v.  Greathouse,  82  Tex.  104;  17  S.  W.  Rep.  834; 
Louisville  &  N.  R.  Co.  v.  Owens,  93  Ky.  201;  19  S.  W.  Rep.  590;  Chicago, 
R.  I.  &  P.  R.  Co.  V.  Witty,  32  Neb.  275;  49  N.  W.  Rep.  183;  Louisville  & 
N.  R.  Co.  V.  Wynn,  88  Tenn,  320;  14  S.  W.  Rep.  311;  St.  Louis,  A.  &  T. 
Ry.  Co.  V.  Robbins  (Texas),  14  S.  W.  Rep.  1075;  Duntley  v.  Boston  &  M. 
(N.  H.),  20  Atl.  Rep.  327;  Western  Ry,  of  Ala.  v.  Harwell  (Alabama),  8 
So.  Rep.  649;  Southern  Pac.  Ry.  Co.  v.  Maddox,  75  Tex.  300;  12  S.  W. 
Rep.  815. 

In  New  York  the  carrier  may  exempt  itself  from  liability  for  losses 
resulting  from  its  own  negligence  (Wilson  v.  New  York  Central,  etc., 
R.  Co.,  97  N.  Y.  87;  Zimmers  v.  New  York,  etc.,  R.  Co.,  137  N.  Y.  460;  33 
N.  E.  Rep.  642;  but  the  intention  must  be  so  plainly  and  distinctly  ex- 


K.\II,WAV    COMTANIES MVH    STOCK I)  \M.\(J  KS.         353 

[28o]  A  siifjiTostinn  has  been  made  tli.it  uotwithstMiiding 
the  si'clion  (6),  a  carrier  of  iroods   ahove  £10  undeclared 

(6)  8. 1. 

pressed  that  It  can  not  be  misunderstood. —  Nicholas  v.  New  York  Cen- 
iril,  etc.,  K.  Co.,  H!>  N.  Y.  370. 

The  carrier  must  furnish  proper  and  suitable  cars  for  the  transporta- 
tion of  live  stock. —  Hawkins  v.  Kailroad  Co.,  17  Mich.  57;  Klmi)all  r. 
Rutland,  etc.,  R.  Co.,  20  Vt.  247;  ludliinapolis,  etc.,  U.  Co.,  v.  Strain,  81 
111.  604;  Illinois  Central  R.  Co.  v.  Haynes.  (53  Miss.  485;  McF'adden  v. 
Missouri  Pac.  Ry.  Co.,  92  Mo.  343;  4  S.  W.  Rep.  fi89.  And  safe  plat- 
fonn.— Owen  v.  Louisville  &  N.  R.  Co.,  87  Ky.  G20;  9  S.  W.  Rep.  fi98. 
Or  If  a  vessel,  suitable  llttinss.— The  Brantford  City,  29  Fed.  Rep.  373. 

And  is  liable  for  damages  sustained  by  a  failure  to  do  so. — Welsh  r. 
Pittsburgh,  etc.,  R.  Co.,  10  Ohio  St.  C5;  I.  P.  &.  C.  R.  Co.  v.  Allen,  31 
Ind.  3'.t4;  Railroad  Co.  v.  Hawkins,  18  Mich.  427;  Railroad  Co.  v.  Hedser, 
9  Bush,  64.'5;  Union  Pac.  Ry.  Co.  v.  Rainey  (Colorado),  34  Pac.  Rep. 
986;  Haynes  v.  Wabash  R.  Co.,  54  Mo.  App.  582;  Louisville  &  N.  R.  Co. 
V.  Kelsey,  89  Ala.  287;  7  So.  Rep.  648. 

Notwithstandinu  an  express  contract  to  the  contrary.  —  Indianapolis, 
etc.,  R.  Co.  V.  Strain,  81  111.  504;  Welsh  v.  Railroad  Co.,  10  Ohio  St.  (55. 

Nor  that  the  cars  belonged  to  an  Independent  company  (Louisville 
A  N.  R.  Co.  V.  Dies,  91  Tenn.  177;  18  S.  W.  Rep.  260),  or  connecting 
carrier.  — Wallingford  v.  Columbia  &  G.  R.  Co.,  26  S.  C.  258;  2  S.  E. 
Rep.  19. 

And  though  the  animals  have  vicious  habits  which  contribute  to  the 
injury.  —  Smith  v.  Railroad  Co.,  12  Allen,  531 ;  Rhodes  r.  Railroad  Co.,  9 
Bush,  688.  See  Selby  v.  Wilmington  &  W.  R.  Co.,  113  N.  C.  588;  18  S. 
E.  Rep.  88. 

But  not  if  the  shipper  had  notice  of  the  defect  in  the  cars  and  con- 
!  sented  to  their  use  (Great  Western  Ry.  Co.  v.  Hawkins,  18  Mich.  427),  or 
knew  of  the  defect  and  did  not  inform  the  company  (Betts  v.  Railroad 
Co.,  21  Wis.  80),   or  selected  his  own  cars,  refusing  those  of  the  car- 
rier.—111.  Cent.  R.  Co.  v.  Hall,  58  111.  409. 

In  this  county  the  carrier  may  by  contract  provide  that  the  shipper 
i  shall  be  his  own  judge  as  to  the  soundness  of  the  cars  he  may  select  for 
the   transportation  of  stock.  —  Harris  v.   Railroad  Co.,  20   N.  Y.  232; 
I  Squire  t.  N.  Y.  Cent.  R.  Co.,  98  Ma.ss.  239. 

j  Damages.  —  The  measure  of  damage  is  the  difiference  In  value  at  the 
time  of  actual  delivery  and  the  market  value  at  the  time  of  delivery  stip- 
ulated in  the  contract.— Smith  v.  Railroad  Co.,  12  Allen,  531 ;  Kansas  Pac. 
Ry.  Co.  V.  Reynolds,  8  Kan.  623;  Sangamon,  etc.,  R.  Co.  v.  Henry,  14  III. 
166;  International  &  G.  N.  R.  Co.  r.  Dimmitt  Co.  P.  Co.,  5  Tex.  Civ. 
App.  186;  23  S.  W.  Rep.  754;  New  York,  L.  E.  &  W.  R.  Co.  r.  Estill,  147 
U.  8.  591;  13  S.  Ct.  Rep.  444,  alUrming  41  Fed.  Rep.  849;  The  Caledonia, 

23 


354  MORE   THAN   ORDINAKY    CARE. 

would  [286]  be  liable  for  gross  negligence  (c),  but  that 
is  clearly  not  the  law  (d).     Section  7  of  the  18  &  19  Vict. 

(o)  Owen  V.  Burnett,  2  Cr.  &  M.  353;  (d)  Hinton  r.  Dibbln,  2  Q.  B.  646. 

per  Vaughan.  B. 

50  Fed.  Rep.  567;  Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Greathouse,  82  Tex.  104; 
17  S.  W.  Rep.  834;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  McCarty,  82  Tex.  608;  16 
S.  W.  Rep.  716;  East  Tenn.,  V.  &  G.  R.  Co.  v.  Hale,  85  Tenn.  69;  1  S. 
W.  Rep.  620;  Texas  &  P.  Ry.  Co.  v.  Sims  (Tes.  Civ.  App.),  26  S.  W. 
Rep.  634;  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Grant,  6  Tex.  Civ.  App.  G74; 
26  S,  W.  Rep.  286;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  McAuley  (Tex.  Civ.  App.), 
26  S.  W.  Rep.  475;  Texas  &  P.  Ry.  Co.  v.  Klepper  (Tex.  Civ.  App),  24 
S.  W.  Rep.  367;  Douglass  v.  Hannibal  &  St.  J.  R.  Co.,  53  Mo.  App.  473. 

Conditions  Affecting-  tlie  Transportation  of  Live  Stock. —  The  fol- 
lowing conditions  affecting  the  transportation  of  live  stock  have  been 
held  reasonable: — 

A  condition  requiring  a  demand  for  damages  to  be  made  within  five 
days  after  the  unloading  of  the  stock. —  Dawson  v.  St.  Louis,  etc.,  R. 
Co.,  76  Mo.  514.  Or  ten  days. —  Case  v.  Cleveland,  etc.,  Ry.  Co.  (Ind. 
App.),  39  N.E.  Rep.  476.  Or  forty  days.— Texas  &  P.  Ry.  Co.  v.  Klepper, 
(Tex.  Civ.  App.),  24  S.  W.  Rep.  567.  Or  thirty  days.  — Louisville,  N. 
A.  &  C.  Ry.  Co.  V.  Widman,  10  Ind.  App.  92;  37  N.  E.  Rep.  554;  Hirshberg 
r.  Dinsmore,  12  Daly,  429.  But  see  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Hume,  6 
Tex.  Civ.  App.  653;  24  S.  W.  Rep.  915;  Same  v.  Elliot  (Tex.  Civ.  App.), 
26  S.  W.  Rep.  915;  Same  v.  Hume  (Texas),  27  S.  W.  Rep.  110. 

That  the  company  shall  be  released  from  liability  for  damages  accru- 
ing to  stock  disconnected  and  apart  from  the  conduct  or  running  of  its 
trains,  and  such  damages  as  arise  from  overloading,  or  heat. —  Mitchell 
V.  Georgia  R.  Co.,  68  Ga.  644. 

That  in  consideration  of  a  reduced  rate  of  freight,  and  a  free  pass 
to  the  shipper  the  carrier  is  released  from  liability  by  reason  of  over- 
loading, suffocation,  heat,  fire  and  the  like. —  Georgia  R.  Co.  v.  Beattie, 
66  Ga.  438;   42  Am.  Rep.  75. 

That  the  claim  for  loss  or  damage  must  be  made  "  before  or  at  the 
time  the  stock  is  unloaded." — Goggin  v.  Kansas,  etc.,  R.  Co.,  12  Kau. 
416.  But  the  general  rule  is  to  the  contrary  (Galveston,  H.  &  S.  A.  Ry- 
Co.  V.  Short  (Tex.  Civ.  App.),  25  S.  W.  Rep.  142;  Harned  v.  Missouri 
Pac.  Ry.  Co.,  51  Mo.  App.  482;  Coles  v.  Louisville,  etc.,  R.  Co.,  41  III. 
App.  607;  Good  v.  Galveston,  H.  &  S.  A.  Ry.  Co.  (Texas),  11  S.  W.  Rep- 
854;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Vaughn  (Texas),  16  S.  W.  Rep.  775), 
for  its  reasonableness  depends  upon  all  the  circumstances  of  each  case, 
as  whether  the  carrier  had  an  agent  near  the  place  of  unloading,  to  whom 
notice  could  be  given.  —Missouri  Pac.  Ry.  Co.  v.  Cornwall,  70  Tex.  611; 
8  S.  W.  Rep.  312;  Missouri  Pac.  Ry.  Co.  v.  Childers  (Tex.  Civ.  App.)' 
29  S.  W.  Rep.  559. 


RAILWAY    COMPANIES—  LIVK   STOCK.  .'jr>5 

c.  31  only  applies  [287J  to  cases  wheie  ncj^lect  or  ilu- 
faiilt  i.s  proved,  and  does  not  apply  to  cases  of  mere  acci- 
deut  (f). 

(e)  Harrison  t-.  L,  ».  &  S.  C.  Ry.  Co.,  31  I*  J.  Q.  B.  113. 

That  In  consideration  of  a  reduced  rate,  any  claim  for  damages  must 
be  made  In  writing,  sworn  to  and  delivered  to  the  general  freight  agent 
at  a  ceruin  i)lace  within  live  days  from  the  time  the  stock  are  un- 
loaded.—Wabash,  etc.,  U.  Co.  V.  Black,  11  111.  App.  4G5;  Selby  v.  Wil- 
mlugton  &  W.  R.  Co.,  113  N.  C.  588;   18  S.  E.  Rep.  88. 

That  In  consideration  of  a  free  pass,  the  slilpper  shall  assume  all  loss 
or  damage  to  the  stock,  except  such  as  might  be  caused  by  collision  or 
running  off  the  track. —  Georgia  R.  Co.  v.  Spears,  G(»  Ga.  485.  But  see 
Hastings  V.  New  York,  etc.,  Ry.  Co.,  G  N.  Y.  S.  Rep.  83G. 

That  stock  may,  If  necessary,  be  jettisoned  for  the  safety  of  the  ship  in 
which  they  are  carried. —  The  Enrique,  5  Hughes,  275. 

A  condition  limiting  the  carrier's  liability  for  loss  to  a  certain  sum, 
when  the  loss  Is  not  occasioned  by  its  negligence. —  H!;rt  v.  Pennsylra- 
Dia,  2  McCrary  C.  C.  333;  Harvey  v.  Terre  Haute,  etc.,  R.  Co.,  7G  Mo.  538. 

Contracts  iu  consuleration  of  reduced  freight,  tlxing  the  value  of  the 
animal  at  a  certain  sum  in  case  of  loss,  have  been  held  reasonable. — 
South  Ala.  R.  Co.  v.  Henlein,  52  Ala.  GOG;  Squire  v.  N.  Y.  Cent.  R.  Co., 
98  Mass.  239;  Zoush  v.  Chesapeake  &  O.  Ry.  Co.,  3G  W.  Va.  624;  15  S.  E. 

•'.    185.     So   have    releases  of  all  liability. —  Central  R.  &  B.   Co.  v. 

ilha,  85  Ala.  47;  4  So.  Rep.  708;  Meyers  v.  Wabash,  etc.,  R.  Co.,  90 
Mu.  98;  2  S.  W.  Rep.  2G3. 

Such  contracts  have  been  held  void  as  releasing  the  carrier  from  lla- 

lily  for  Its  own  negligence,  and  this  seems  to  be  the  belter  view. — 
Nie  Article  on  the  Transportation  of  Live  Stock,  19  Cent.  Law  Jour.  IGl. 
167;  Chicago,  etc.,  R.  Co.  v.  Abels,  GO  Miss.  1017;  Kansas,  etc.,  R.  Co.  v. 
Simpson,  30  Kan.  G45;  Moulton  v.  St.  Paul,  etc.,  R.  Co.  31  Minn.  85. 

Id  the  same  article  It  is  said :  "  Contention  on  the  subject  is  avoided 
by  a  tariff  of  two  rates,  one  flxed  and  the  other  sliding  or  proportionate 
to  the  valuation  set  upon  the  animal  by  the  owner. —  Harvey  v.  Terre 
Haute,  etc.,  R.  Co.,  74  Mo.  538;  McCance  v.  London,  etc.,  R.  Co.,  3  U. 
&  C.  343;  Harrison  v.  London,  etc.,  R.  Co.,  2  Best  &  Sm.  122. 

"Where  a  shipper  tlxes  the  valuation  of  a  costly  animal  at  a  low  llgurc 
Id  order  to  secure  cheap  transportation,  he  can  recover  no  more  than  the 
amoDDt  represented  as  value  on  the  ground  that  to  permit  liim  to  recover 
more  would  be  a  fraud  on  the  carrier. —  Harvey  v.  Terre  Haute,  etc.,  R. 
Co.,  supra;  McCance  o.  London,  etc.,  R.  Co.,  supra.^^ 

Miscellaneous. —  Under  a  contract  for  shipment  of  hogs  by  railroad 
It  being  agreed  that  the  shipper  "assume  all  risks  of  transportation" 
»nd  that  the  company  shall  not  be  responsible  for  any  delays  at  terminal 
points,  nor  for  delays  at  points  where  stock  is  to  be  delivered  to  connect- 


356  MORE    THAN    ORDINARY    CARE. 

[288]  The  measure  of  damages  is  the  value  of  the 
goods  at  the  place  aud  at  the  time  of  delivery  (/).    Where 

(f)  O'Hanlan  v.  G.  W.  Ry.  Co.,  34  L.  Williams  v.  Reynolds,  ?"&.,  Q.  B.  221;  Lord 

J.  Q.  B.  154 ;  13  VV.  R.  741 ;  Rice  v.  Baxen-  v.  Mid.  Ry.  Co.,  36  L.  J.  C.  P.  170;  Collard 

dale,  30  L.  J.  Ex.  371.    Thus  the  carrier  v.  S.  E.  R.  Co.,  30  L.  S.  Ex.  393;  Simpson 

Is  liable  for  the  fallingof  prices;  Wilson  v.  L.  &  N.  W.  Ry.  Co.,  45  L.  J.  Q.  B.  188 

V.   L.    &  Y.  Ry.  Co.,  30  L.  J.  C.  P.  232;  (profit  which  might  have  been  made  at  a 

Borries  v.  Hutchinson, 34  L.  J,  C.  P.  169;  particular  show) ;  [seeposf,  p.  358]. 

ing  lines,  it  was  held  that  the  company  was  not  nesponsible  for  a  delay 
caused  by  a  riot  at  the  terminal  point  on  its  road  whereby  some  of  the 
hogs  fell  sick  and  died. —  Bartlett  v.  Pittsburgh,  etc.,  R.  Co.,  94Ind.  281. 

See  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Gatewood,  79  Tex.  89;  14  S.  W.  Kep. 
913. 

Liability  for  Delay —  Strikes  —  Riots. —  If  damage  or  delay  is  caused 
by  the  acts  of  striliers  in  the  employ  of  the  company,  the  company  will  be 
liable.  (Pittsburgh,  etc.,  R.  Co.  v.  Hazen,  84  111.  36;  Blockstockw.  N.  Y., 
etc.,  R.  Co.,  20  N.  Y.  48;  65  Ind.  188;  34  Hun,  501;  Missouri  Pac.  Ry. 
Co.  V.  Nevill,  60  Ark.  375;  30  S.  W.  Rep.  425;  40  C.  L.  J.  468;  if  It  18 
caused  by  the  acts  of  outside  parties,  the  company  will  not  be  liable;  if 
it  is  caused  by  the  acts  of  strikers,  employes  of  the  company,  though 
assisted  by  outside  parties,  the  company  will  be  liable  (34  Hun,  50) ;  but 
if  it  is  caused  by  the  acts  of  strikers  after  they  are  discharged  from 
employment,  the  company  will  not  be  liable. —  84  111.  36;  10  III.  App.  296. 

The  acts  must  be  violent  and  irresistible;  for  if  the  company  could 
have  themselves,  or  with  the  assistance  of  the  authorities,  have  pre- 
vented the  loss  or  delay,  they  will  still  be  liable. —  Pittsburgh,  etc.,  R. 
Co.  V.  Hazen,  84  111.  36;  Pittsburgh,  etc.,  R.  Co.  v.  Hollowell,  65  Ind.  188. 

In  Geisner  v.  Lake  Shore,  etc.,  Ry.  Co.,  (34  Hun,  50),  it  was  held  that 
defendant  was  liable  in  damages  for  delay  in  the  transportation  of  goods 
caused  by  a  strike  of  its  employes,  though  assisted  by  outside  persons. 
In  the  opinion  the  following  cases  are  referred  to;  — 

In  Weed  v.  Panama  R.  Co.,  (17  N.  Y.  362),  an  action  for  damages 
sustained  by  a  railroad  passenger  by  reason  of  the  willful  act  of  the  con- 
ductor in  stopping  the  train,  and  detaining  it  over  night,  it  was  held  that 
the  company  was  under  a  contract  to  transport  the  passenger  with  rea- 
sonable dispatch  to  his  place  of  destination,  and  that  the  plaintiff  could 
recover  notwithstandiog  the  act  of  the  conductor  in  stopping  the  train 
was  willful,  and  that  he  was  acting  within  the  scope  of  his  employment. 

In  Blockstock  v.  N.  Y.,  etc.,  R.  Co.,  (20  N.  Y".  48),  an  action  for  dam- 
ages fur  delay  In  the  carriage  of  freight  caused  by  a  strike  of  the 
engineers  of  the  defendant  company,  the  company  was  held  liable. 

In  Indianapolis,  etc.,  R.  Co.  v.  Yuntgen,  (10  111.  App.  295),  it  was  said 
that  a  "common  carrier  is  only  required  to  exercise  due  care  and  dili- 
gence to  guard  against  delay,  and  where  its  servants  are  overpowered  by 
a  mob,  and  prevented   from  forwarding  its  trains,  it  will  not  be  held 


KAII.WAV    COMPANIES DELAY    IN    TUAN8I*OUTATION.       357 

special  circMimstances  under  which  ;i  contract  is  made  arc 
known  to  l)oth  parties,  the  carrier  is  liable  for  the  loss, 
which  would  ordinarily  How  from  those  circumstances  (g), 
but  not  for  a  loss  which  could  not  fairly  be  contemp- 
ts) Iladley  v.  Haxonclale,  'J  Kxcli.  Ml ;  C.  V.  177  ;  Corry  v.  Thamca  Iron  Works, 
Hales  V.  L.  A  N.  Ky.  Co.,  3J  L.  J.  Q.  B.  ,17  L.  J.  Q.  It.  GS. 
m;  Woodjter  v.  Gt.  W.  Uy.  Co.,;je  L.J. 

responsible  for  a  delay,  provided  it  omits  uo  reasonable  effort  to  .secure 
the  property  in  course  of  transportation;  that  for  a  loss  occasioned  by 
the  refusal  of  the  company's  servants  to  do  their  duty,  the  company  is 
responsible;  but  for  a'delay  resulting  solely  from  the  lawless  violence  of 
men  not  in  its  employ  the  company  is  not  responsible."  In  this  case  the 
court  held  plaintiff  was  not  entitled  to  recover,  as  it  appeared  from  the 
evidence  upon  the  trial  that  but  a  small  portion  of  the  strikers  iiad  been 
in  the  employ  of  the  defendant  company,  and  that  they  had  left  their  em- 
ployment and  joined  the  strike,  and  the  great  body  of  strikers  were  men 
not  in  the  employ  of  the  company. 

In  Pittsburgh,  Fort  Wayne  &  Chicago  R.  Co.  v.  Ilazen,  (84  111.  3r,;  25 
Am.  Rep.  222),  the  rule  was  laid  down  that  a  common  carrier  is  excused 
for  delay  in  the  carriage  of  goods  when  the  delay  is  caused  solely  by  the 
violent  and  irresistible  interference  of  strikers  recently  discharged  from  the 
carrier's  employment,  and  it  was  stated  that  for  a  delay  resulting  from 
the  refusal  of  the  employes  of  tlie  carrier    to  do  duty  the  carrier  is  liable. 

In  Pittsburgh,  etc.,  R.  Co.  v.  HoUowell,  (r.5  Ind.  188;  32  Am.  Rep.  03), 
an  action  against  a  common  carrier  for  delay  in  receiving  and  carrying 
live  stock,  the  defendant  answered  that  the  delay  was  caused  solely  by 
rta.son  of  the  fact  "that  although  the  defendant  was  prepared  to 
receive  and  carry  goods,  an  armed  multitude  of  people  in  rebellion 
ajjainst  the  laws  of  the  State,  which  neither  the  defendant  nor  the  civil 
authorities  of  the  State  was  able  to  control,  by  force  and  arms  drove 
away  the  engineers  and  firemen  operating  the  defendant's  engines  and 
cars,  thus  preventing  defendant  from  receiving  and  carrying  the  plain- 
tiff's live  stock."  On  demurrer  the  answer  was  held  sulllcient.  The 
reply  alleged  that  the  "cause  of  such  pretended  insurrection  was  an  un- 
just and  oppressive  reduction  by  the  defendant  of  the  wages  of  its  em- 
ployes,which  Induced  them  to  strike  and  refuse  to  work,  and  to  assemble 
in  a  peaceable  body  to  demand  a  restoration  of  their  former  rate  of 
wages,  but  without  offering  any  resistance  to  the  civil  authorities;  "  and 
this  was  held  insuftkient,  as  was  also  a  reply  alleging  that  "  such  insur- 
rection was  composed  solely  of  employes  of  the  defendant,  who  peace- 
ably and  without  arms  or  violence,  and  on  account  of  an  unjust  and 
oppressive  reduction  by  the  defendant  of  their  wages,  refused  to  continue 
in  the  defendant's  employ  until  tlieir  former  rate  of  wages  was  restored, 
and  who  had  peaceably  assembled  In  a  small  body  to  petition  therefor." 


358  MORE    THAN    ORDINARY    CARE. 

lated  by  the  parties,  such  as  general  loss  of  business,  or 
profits  or  wages  (h).  [289]  The  notice  of  the  special 
circumstances  in  many  cases  leads  to  the  inference  that  the 
carrier  undertook  to  be  responsible  for  the  special  dam-  I 
af^es ;  but,  of  course,  that  inference  does  not  arise 
where  the  damages  are  not  such  as  might  be  expected  to 
flow  from  the  circumstances  (^).  In  an  action  for  trover 
in  wrongfully  refusing  to  deliver  champagne  which  the 
plaintiff  had  bought  of  the  defendant,  the  price  at  which 
the  plaintiff  had  resold  it  was  recovered,  although  the 
defendant  had  no  knowledge  or  notice  of  the  purpose  for 
which  it  was  bought  {k). 

A  question  of  considerable  difficulty  often  arises  where  a 
railroad  company  is  forwarding  goods  to  a  destination 
beyond  its  own  line,  and  the  goods  are  lost  beyond  its 
own  line.  Probably  the  difficulty  arises  from  not  consid- 
ering accurately  what  the  duty  or  contract  is  which  the 
defendant  company  has  undertaken  to  perform.  If  a  car- 
rier contracts  to  carry  from  A.  (through  B.)  to  C,  that  is 

(ft)  Crouch  V.  G.  N.  Ry.  Co.,  11  Exch.  (i)  See  per   Blackburn,  J.,  In  Home 

743;  Le  Pelnture  v.  S.  E.  Ry.  Co.,  2  L.  T.  v.  Mid.  Ry.  Co.,  42  L.  J.  C.  P.  59;  L.  K.8 

170;  (ice  V.  L.  &  Y.  Ry.  Co.,  30  L.  J.  Ex.  C.  P.  131. 

11 ;  Home  v.  Md.  Ry.  Co.,  L.  R.  8  C.  P.  ik)  France  v.  Gaudet.  L.  R.  6  Q.  B.  199. 
131 ;  42  L.  J.  C.  P.  59  (boots  for  the  French 
army,  cessation  of  war). 

Damages.  —  When  goods  are  lost  or  destroyed,  the  measure  of 
damage-*  is  their  market  value  at  their  place  of  des'inaLion  at  the  time 
when  they  sliould  have  arrived,  less  the  cost  of  can  atre. — Perkins  f. 
The  Portland,  etc.,  II.  Co.,  47  Me.  573;  Brown  v.  Camden,  etc.,  R.  Co., 
83  Pa.  St.  31G;  Wood  on  Railways,  p.  1^)37;  Galveston,  H.  &  S.  A.  Ry. 
Co.  V.  Ball,  80  Tex.  C02;   1(>  S.  W.  Rep.  4il. 

When  goods  are  unreasonably  delayed  in  transportation,  the  measiwp 
of  damages  is  the  difference  in  their  value  at  the  time  and  place,  when 
and  where  they  should  have  been  delivered,  and  their  value  at  the  time 
of  actual  delivery.  —  Peet  v.  The  Chicago,  etc.,  Ry.  Co.,  20  Wis.  594; 
Weston  V.  Grand  Trunk,  etc.,  R.  Co.,  54  Me.  37G;  Condict  v.  Grand 
Trunk,  etc.,  R.  Co.,  54  N.  Y.  500;  Devereux  v.  Buckley,  34  Ohio  St.  16; 
King  V.  Woodbridge,  34  Vt.  565;  Sisson  v.  Cleveland,  etc.,  R.  Co.,  U 
Mich.  489;  Sangamon,  etc.,  R.  Co.  v.  Henry,  14  111.  156;  Bowden  v.  San 
Antonio    &    A.  P.  Ry.    Co.   (Tex.  Civ.  App.),  25  S.  W.  Rep.  987;  Ea.'.t 


KAII.WAY    rOMPAMKS DAMAGES.  359 

[290]  Ji  contract  of  carriage,  and  lie  is  liable  as  a  carrier 
all  the  way  to  C,  alth()U<;h  soino  other  carrier  may  in  fact 
he  carrying  the  goods  from  B.  to  C.  But  if  he  contracts 
to  carry  from  A.  to  B.,  aiitl  a::;re('s  to  facilitate  as  fai-  ;i.s  he 
pleases  the  further  transit  of  the  goods  to  C,  but  says  he 
will  not  undertake  their  carriage  to  C,  then  if  they  are  lost 
httween  B.  &  C.  he  is  not  liable  as  a  carrier  (/).  It  is 
therefore  an  unreasonable  condition  in  a  contract  to  carry 
from  A.  to  C,  to  say  that  the  defendant  shall  under  no 
circunistances  be  liable  for  loss  between  B.  and  C.  (m); 
hut  it  is  a  binding  condition  in  a  contract  to  carry  from  A. 
to  B.,  and  to  assist  in  forwarding  to  C,  to  say  that  the 
defendant  shall  under  no  circumstances  be  liable  for  loss 
between  B.  and  C,  for  the  latter  part  is  not  a  contract  to 
carry  if  the  Act  does  not  apply  (n). 

(J)  Fowler  r.  G.  W.  Ry.  Co.,  7  Exch.  (m)  Bristol  A:  Exeter  Uy.  r.  Collins. 

891);  Aldrldge  c.  G.  \V.  Ry.  Co.,  XJ  L.  J.  supni. 

C.  P.  101;  ItrUtol  &  Exeter  Ry.  V.Collins,  (»o  Kowler  i-.    G.    W.    Ry.   Co.,    and 

7  II.  L.  C.  IM.  Aldrldge  v.  G.  W.  Ry.  Co..  tupra. 

Tenn.,  V.  &  G.  Ry.  Co.  r.  Johnson,  85  Ga.  497;  11  S.  E.  Kep.  809;  Atchi- 
Kon,  T.  &  S.  F,  R.  Co.  v.  Lawler,  40  Neb.  350;  58  N.  W.  Rep.  908;  Gal- 
veston, H.  &  S.  A.  Ry.  Co.  v.  Silegeraan  (Tex.  Civ.  App.),  23  S.  W.  Rep. 
298;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Pettit,  3  Tex.  Civ.  App.  588;  22  S.  W. 
Rep.  701;  Missouri  Pac.  Ry.  Co.  v.  Russell  (Texas),  18  S.  W.  Rep.  594; 
Missouri  Pac.  Ry.  Co.  v.  Breeding  (Texas),  10  S.  W.  Rep.  184;  Murrell 
r.  Paclllc  Exp.  Co.,  54  Ark.  22;  14  S.  W.  Rep.  1098;  Echols  v.  Louisville 
&  N.  R.  Co.,  90  Ala.  300;  7  So.  Kep.  655;  Western  Mfg.  Co.  v.  The 
Guiding  Star,  37  Fed.  Rop.  041;  Hudson  v.  The  Northern  Pac.  R.  Co. 
(Iowa),  00  N.  W.  Rep.  008. 

Wliere  the  carrier  has  notice  of  the  special  purpose  for  which  the 
consignee  Intends  using  the  freight,  special  damages  may  be  recovered 
lor  delay  in  transportation.  —Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Gilbert,  4  Tex. 
Civ.  App.  ?0G;  22  S.  W.  Rep.  700. 

A  loss  to  plaintiff's  business  will  not  be  considered  in  estimating 
dafnages  against  a  carrier  for  non-delivery  of  goods.  —  Baltimore,  etc., 
R.  Co.  I'.  Pumphrey,  59  Md.  390. 

When  goods  are  injured  the  measure  of  damages  Is  the  difference 
between  their  value  in  the  condition  in  which  they  are  delivered  &ml  their 
value  at  the  time  and  in  the  condition  in  which  tliey  should  have  been 
delivered.  — Winue  r.  Illinois  Central  R.  Co.,  31  la.  5.S3. 

(n)  In  this  country  a  carrier's  liability  for  goods  does  not  extend  be- 


360  MORE  THAN  ORDINARY  CARE. 

Both  the  above-mentioned  statutes  apply  to  passengers' 
luggage  (o). 

(o)  Cohen  v.  S.  E.  Ry.  Co.,  L.  R.  1  Ex.  D.  217;  45  L.  J.  Ex.  298;  in/m,  In  C.  A. 

yond  the  terminus  of  its  own  route  in  the  absence  of  a  contract  to  carry 
them  to  the  point  of  destination. —  Pacliard  v.  Laylor,  35  Ark.  402;  Mich. 
Cent.  R.  Co.  v.  Mineral  Springs  Mnft.  Co.,  16  Wall.  318;  Grover  &  Baker 
Sewing  Machine  Co.  v,  Missouri  Pac.  R.  Co.,  70  Mo.  672;  Elmore  v. 
Naugatuck  R.  Co.,  23  Conn.  457;  Phillips  v.  Railroad  Co.,  78  N.  C.  204; 
Detroit,  etc.,  R.  Co.  v.  McKenzie,  43  Mich.  609;  Clyde  v.  Hubbard,  88  Pa. 
St.  358;  Lock  Co.  v.  Railroad  Co.,  48  N.  H.  355;  Irish  v.  Railroad  Co., 
19  Minn.  376;  Perkins  v.  Railroad  Co.,  47  Me.  573;  Burroughs  v.  Railroad 
Co.,  100  Mass.  26;  Crawford  u.  Railroad  Co.,  51  Miss.  522;  Nashville, 
etc.,  R.  Co.  V.  Sprayburg,  8  Baxt.  341;  Piedmont  Mnfg.  Co.  v.  Columbia, 
etc.,  R.  Co.,  19  S.  C.  353;  Knott  v.  Raleigh  &  G.  R.  Co.,  98  N.  C.  73;  3  S. 
E.  Rep.  735;  Wichita  Val.  Ry.  Co.  v.  Swenson  (Tex.  Civ.  App.),  25  S. 
W.  Rep.  47;  Hunter  v.  Southern  Pac.  Ry.  Co.,  76  Tex.  195;  13  S.  W. 
Rep.  190;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Cochran,  43  Kan.  225;  23  Pac. 
Rep.  151;  McConnell  v.  Norfolk  &  W.  R.  Co.,  86  Va.  248;  9  S.  E.  Rep. 
1006;  East  St.  Lou4s  Connecti«ig  Ry.  Co.  v.  Wabash,  etc.,  Ry.  Co.,  123 
111.  594;  15  N.  E.  Rep.  45;  Su>mner  ?j.  Walker,  30  Fed.  Rep.  261;  Ortt  u. 
Minneapolis  &  St.  L.  Ry.  Co.,  36  Minn.  396;  31  N.  W.  Rep.  519. 

This  rule  does  not  prevail  in  Alabama  (Mobile,  etc.,  R.  Co.  v.  Cope- 
land,  63  Ala.  625;  35  Am.  Rep.  13;  Montgomery,  etc.,  R.  Co.  v.  Culoes, 
75  Ala.  587);  or  Illinois  (Illinois,  etc.,  R.  Co.  v.  Wilcox,  84  111.  239;  25 
Am.  Rep.  451);  and,  perhaps,  Georgia. —  Southern  Express  Co.  v.  Shea, 
38  Ga.  519;  Georgia  R.  Co.  v.  Cole,  68  Ga.  623. 

This  liability  Is  not  changed  by  the  fact  that  the  goods  received  are 
marked  and  directed  to  a  place  beyond  the  terminus  of  the  carrier's 
route. —  Detroit,  etc.,  Ry.  Co.  v.  McKenzie,  43  Mich.  609;  Nutting  v. 
Connecticut  River  R.  Co.,  1  Gray,  602;  Illinois  Cent.  R.  Co.  v.  Kerr,  68 
Mies.  14;  3  So.  Rep.  330.  Contra,  Ohio  &  M.  R.  Co.  v.  Emrich,  24  111. 
App.  245. 

Either  the  goods  must  be  delivered  or  notice  of  their  arrival  must  be 
given  to  the  connecting  carrier,  and  a  reasonable  time  afforded  for  tak- 
ing them  before  the  liability  of  the  first  carrier  ceases.  And  if  the  good.s 
are  destroyed  by  fire  after  their  arrival  and  before  the  connecting  carrier 
has  notice  thereof,  and  a  reasonable  opportunity  to  take  them,  the  first 
carrier  is  liable.— Erie  Ry.  Co.  v.  Lockwood,  28  Ohio  St.  368;  Mfch. 
Cent.  R.  Co.  v.  Mineral  Springs  Mnfg.  Co.,  16  Wall.  318;  Wehman  r. 
Minneapolis,  etc.,  Ry.  Co.  (Minnesota),  59  N.  W.  Rep.  646;  Melbourne 
V.  Louisville  &  N,  R.  Co.,  88  Ala.  443;  6  So.  Rep.  762;  Palmer  v.  Chicago, 
B.  &  Q.  R.  Co.,  56  Conn.  137;  13  Atl.  Rep.  818;  Southard  v.  Minneapolis, 
etc.,  Rf .  Co.  (Minnesota),  62  N.  W.  Rep.  442. 

The  carrier  may  by  contract  extend  its  liability  beyond  its  own  line.— 


RAILWAY    COMPANIKS LIAHILITY    UKYONIJ    KOITK.       361 

[291]  Kailway  cotnpanies  urc,  it  would  seem,  upurt  from 
the  bttttuto  or  spi'cial  contract,  insurers  of  passengers* 
luggage  which  they  have  taken  under  control  (])).  The 
quantity  of  luggage  which  a  passenger  is  allowed  to  take 
with  him,  without  any  extra  charge  being  made,  is  regulated 
hy  the  private  Act  of  the  particular  company  ;  but  when  a 
passenger  takes  an  ordinary  ticket  for  himself,  he  is  paying 

v/))  Marrow  v.  G.  W.  Ry.  Co.,  L.  U.  6  tlio  Court  of  Appeal,  but  the  case  of 

Q  IJ.  fii;;  Cohon  v.  8.  E.  Ry.  Co.,  L.  R.  I  Stewart  v.  L.  &  N.  W.  Ry.  Co.,  in  which 

£x.  D.  217;  1  Ex.  D.  •25;{;46  L.J.  Ex.418,  the  contrary  was  saggCBted,  Is  overruled. 
C.  A.    This  la  not  expressly  decided  In 

Cobb  I'.  Illinois  Central  R.  Co.,  38  la.  601 ;  Phillips  v.  North  Carolina 
R.  Co.,  78  N.  C.  294;  Irish  v.  Milwaukee,  etc.,  R.  Co.,  19  Minn.  376; 
Central  R.  &  B.  Co.  v.  Georgia  F.  &  V.  Exchange,  91  Ga.  389;  17  S.  E. 
Rep.  904;  Missouri  Pac.  R.  Co.  v.  Twiss,  35  Neb.  267;  53  N.  \V.  Rep.  76; 
loternatioual  &  G.  N.  R.  Co.  v.  Anderson,  3  Tex.  Civ.  App.  8;  21  S. 
W.  Rep.  691;  Beard  v.  St.  Louis,  etc.,  Ry.  Co.,  79  la.  627;  44  N.  W.  Rep. 
803;  Savannah  F.  &  W.  Ry.  Co.  v.  Pritchard,  77  Ga.  412;  1  S.  E.  Rep. 
261;  Perelra  v.  Central  Pac.  R.  Co.,  66  Cal.  92;  Gulf,  C.  &  S.  F.  Ry.  Co. 
t>.  Insurance  Co.  (Tex.  Civ.  App.),  28  S.  W.  Rep.  237;  Davis  w.  Jackson- 
ville S.  Line,  126  Mo.  69;  28  S.  \V.  Rep.  965. 

So,  by  contract,  the  liability  of  connecting  carriers  may  be  limited. — 
Texas  &  P.  Ry.  Co.  v.  Adara.s,  78  Tex.  372;  14  S.  W.  Rep.  666;  Jones  v. 
Cincinnati,  S.  &  M.  Ry.  Co.,^89  Ala.  376;  8  So.  Rep.  61 ;  Western  Ry.  Co. 
ol  Ala.  V.  llarmell,  67  Ala.  341 ;  11  So.  Rep.  781;  Central  R.  &  B.  Co.  v. 
Bridger,  94  Ga.  471;  20  S.  W.  Rep.  349. 

Or  It  may  agree  that  It  shall  not  be  held  liable  for  loss  or  damage 
except  as  forwarder,  only  beyond  Its  own  line. —  Bryan  v.  Memphis,  etc., 
R.  Co.,  11  Bush,  597;  Colton  v.  Cleveland,  etc.,  R.  Co.,  67  Pa.  St.  211 ; 
Snider  p.  Adams  Express  Co.,  63  Mo.  376;  Lamb  v.  Camden,  etc.,  R.  Co., 
46  N.  Y.  271. 

But  in  the  absence  of  a  special  contract  to  deliver  the  goods  beyond  its 

own  line,  the  general  rule  Is  as  stated  that  the  carrier's  liability  is  at  an 

I    end   when  It  has  safely  delivered  the  goods  to  the  connecting  carrier. 

(Associated  railway  companies  may  be  liable  as  partners  in  such  cases 

when  a  recovery  may  be  had  from  them  jointly  or  severally.—  Block  v. 

I    Railroad  Co.,  139  Mass.  308;  21  C.  L.  .1.  506,  note  597;  1  N.  E.  Rep.  348; 

j    Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Grant,  6  Tex.  Civ.  App.  674;  26  S.  W. 

Rep.   286;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Johnson  (Tex.  Civ.    App.), 

89  S.  \V.  Rep. 428. 

The  giving  of  a  through  rate  does  not  Increase  its  liability,  nor  does 
the  giving  of  a  receipt  showing  that  the  goods  were  consigned  to  a  point 
beyond  its  line.— Goldsmith  v.  Chicago,  etc.,  R.  Co.,  12  Mo.  App.  479. 


362  MORE    THAN    ORDINARY    CARE. 

a  ]):iit  of  the  price  for  the  luggage  he  is  taking  with 
him  {q). 

[292]  It  was  held  in  one  case  that  a  passenger  might 
agree  that  the  luggage  should  be  carried  at  his  own  risk  (?•), 
but  it  has  been  decided  that  the  7th  section  of  the  Railway 
and  Canal  Traffic  Act  applies,  and  that  the  company  are 
liable  (.s),  notwithstanding  such  agreement.  In  Rumsey  r. 
N.  E.  Ry.  Co.,  the  plaintiff  took  an  excursion  ticket,  the 
conditiijn  being  that  no  luggage  should  be  taken;  and  he, 
in  fraud  of  the  company,  took  his  portmanteau  with  him, 
and  it  was  held  that  the  company  had  a  lien  upon  the  port- 
manteau for  the  extra  charge  which  the  plaintiff  would  have 
paid  in  taking  an  ordinary  ticket.  Here  the  company  had 
not  undertaken  to  carry  the  plaintiff's  portmanteau  at  all 
under  the  circumstances  {t). 

When  a  passenger  retains  his  own  personal  control  over 
his  own  luggage  the  company  are  no  longer  insurers  of  its 
safety,  but  are  liable  only  when  neghgence  upon  their  part 
is  proved  (w). 

The  company's  liability  extends  to  the  receiving  and  de- 

(7)  Cohen  v.  S.  E.  Ry.  Co.,  mipra.    As  etc.,  R.  Co.,  25  Ga.  61 ;  Soathwestern  K. 

to  what  Is  "passengers'  luggage,"  see  Co.  v.  Bently,  51  Ga.  311;  Nordemeyer 

Gt.  N.  Ry.  Co.  V.  Shepherd,  8  Exch.  30  v.  Loescher,  1  Hilt.  499.] 
(Ivory  handles  for  sale) ;  Cahlll  v.  L.  &  (m)  Talley  v.  G.  W.  Ry.  Co.,  L.  R.  6  C. 

N.  W.  Ry.  Co.,  10  C.  B.  N.  S.  154;  13  C.  B.  P.  44;  40  L.  J.  C.  P.  9;  Bergheim  v.  Gt 

X.  S.  818;  31  L.  J.  C.  P.  271  (box  labeled  Eastern    Ry.  Co.,  3  C.  P.  D.  221.    The 

"glass  ••) ;  Kej's  v.  Belfast  Ry.  Co.,  9  H.  mere  fact  of  the  luggage  being  placed 

L.  C.  556;  Phelps  v.  L.  &  N.  W.  Ry.  Co.,  by  a  porter  in  the  carriage  with  tbepas- 

34  L.  J.  C.  P.  2.59;  Hudston  v.  Mid.  Ry.  senger  does  not  show  that  the  passenger 

Co.,  L.  R.  4  Q.  B.  366;  38  L.  J.  Q.  B.  213  has  reassumed  his  control;  see  Richards 

(child's  rocking-horse) ;   Macrow  v.  G.  v.  L.  B.  &  S.  C.  Ry.  Co.,  7  C.  B.  839;  eee 

W.  Ry.  Co.,  supra  (linen).  also  Kent  v.  Mid.  Ry.  Co.,  L.  R.  10  Q.  B. 

(r)  Stewart  v.   L.  &  N.  W.  Ry.  Co.,  1;  44  L.  J.  Q.  B.  18  (changing  from  one 

33  L.  J.  Ex.  199  (excursion  train).  station    to    another  luggage  not  taken 

(«)  Cohen  v.  S.  K.liy.  Co.,  supra.    A  Into  control  of  second  company,  passen- 

passenger  may  agree  to  travel  at  his  own  ger  booked  through  ;  see  Mid.  Ry.  Co.  v. 

risk,  because  the  Railway  Act  only  ap-  Bromley,  17  C.  B.  372;  where  passenger 

piles  to  goods,  see  post,  pp.  309,310.  had  not  booked  through).    Where  Ing- 

(<)  liumsey  v.  N.  E.  Ry.  Co.,  32  L.  J.  gage  is  received  by  the  company  as  the 

C.  P.  244.    That  railway  companies  have  luggage  of  the  servant,  but  it  turns  out 

a  lien  upon  luggage  for  unpaid  fares,  to  be  his  master's,  who  is  following  by 

see  Wolf  V.  Summers,  2  Camp.  G31 ;  Wal-  another  train,  the  company  are  not  lla- 

118  V.  L.  &  S.  W.  Uy.  Co.,  L.  R.  5  Ex.  62;  ble  for  the  loss;  Beecher  v.  G.  E.  By. 

39  L.  J.  Ex.  57;  [Hulchings  v.  Western,  Co.,  L.  R.  5  Q.  B.  241;  39  L.  J.  Q.  B.  122. 


KAILWAV    (O.MrANIKS I5AOGAOE.  303 

livering  of  the  passenger's  luggage  to  and  from  the  car- 
riage in  which  the  passenger  arrives  or  departs  (x).  If  thi- 
[)assenger  gives  special  directions  as  to  laWcling,  etc.,  to  a 
-rrvunt  of  the  company,  who  thereupon  undertakes  the 
l'93]  charge,  the  company  are  answerable  for  its  safet}' 
(y),  notwithstanding  a  notice  to  the  effect  that  luggage 
must  be  left  at  the  cloak-room  (s). 

Where  a  passenger  took  a  ticket  and  traveled  on  tiie 
Great  Western  line,  and  at  a  junction  with  the  defendants' 
line  his  luggage  was  taken  charge  of  by  defendants'  serv- 
ants and  lost,  the  defendants  were  held  liable,  although 
there  was  no  express  contract  with  them  (a). 

As  warehousemen  of  luggage,  railway  companies  are  in 
a  different  position  from  that  in  which  the  law  i)laces  them, 
whilst  they  exercise  their  duties  as  carriers.  In  the  absence 
of  any  condition  limiting  their  liability,  they  are  liable  (to 
the  extent  of  the  injury  done)  for  ordinary  negligence,  as 
in  the  case  of  an  ordinary  bailee  for  reward  (b).     Ware- 

(j)  Agroel  f.  L.  &  X.  W.  Uy.  Co., 34  L.  (c)  Lovell  r.  1).  C.  &  I).  Uy.  Co.,  45  L. 

T.  134 ;  Uichards  v.  L.  B.  A  S.  C.  Ry.  Co.,  J.  Q.  15.  476. 

7  0.  II.  ftW;  Butcher  f.L.&S.  W.  Uy.  Co.,  (</)  Uoppcr  v.   L.  .V    N      W.  Uy.  Co., 

16  C.  B.  13.  43  L.  T.  N.  8.  670. 

(y)  Agrell  c.  L.  &  N.  W.  Uy.  Co.,  mi)ra.  (6)  Ante. 


Ba^eraere. —  Comraou  carriers  are  insurers  of  baggage  (Hannibal  R. 
Co.  V.  Swift,  12  Wall.  2G2;  Boraor  u.  Maxwell,  9  Humph.  G21;  Powell 
V.  Myers,  2G  Wend.  o"Jl;  Woods  u.Devins,  13  111.  74G)  when  it  is  deliv- 
ered Into  their  custody  and  placed  under  their  charge.  —  Kinsley 
V.Lake  Shore,  etc.,  R.  Co.,  125  Mass.  54;  Cohen  v.  Frost,  2  Duer,  335; 
Toledo,  St.  L.  &  K.  C.  R.  Co.  v.  Tapp,  C  Ind.  App.  304;  33  N.  E.  Rep. 
462;  International  &  G.  N.  R.  Co.  r.  FoUiard,  GO  Tex.  G03;  1  S.  W.  Rep. 
624;  Hamburg  American  Packet  Co.  v.  Gattman,  127  111.  598;  20  N.  E. 
Rep.  GG2,  aflirming  27  111.  App.  182.  They  are  not  liable  for  baggage 
retained  in  the  possession  of  the  passenger. —  Tower  r.  Utica,  etc.,  R. 
Co.,  7  Hill,  47;  First  Nat.  Bank  of  Greenflcld  v.  MarietUi,  etc.,  R.  Co., 
20  Ohio  St.  :259;  Grosvenor  v.  N.  Y.  Cent.,  etc,  R.  Co.,  39  N.  Y.  34; 
Henderson  v.  Louisville,  etc.,  R.  Co.,  20  Fed.  Rep.  230. 

The  term  ''  baggage  "  has  beep  defined  to  be  such  articles  as  a  traveler 
Qsoally  carries  with  him  for  his  comfort  and  convenience,  both  during 
the  journey  and  during  his  stay  at  the  place  of  destination.—  3  Wood  on 
Railways   (1894),  pp.  1798,    1807,  1818.     In  England  and   California  the 


364  MORE  THAN  ORDINARY  CARE. 

housemen   come   within  what  Lord  Holt  calls  the  second 
sort   of  bailees,  and    are   bound   to  take  reasonable  care 

term  "  luggage  "   obtains  in  law    instead  of   "baggage." — Pflster  d. 
Central  Pac.  R.  Co.,  70  Cal.  169;   11  Pac.  Eep.  686. 

Baggage  has  been  held  to  include  wearing  apparel  and  jewelry  worn 
by  the  passenger  and  his  family  traveling  with  him  (Smith  v.  Boston, 
etc.,  R.  Co.,  44  N.  H.  325;  Mississippi,  etc.,  R.  Co.  v.  Kennedy,  41  Miss. 
671 ;  McCormick  v.  Hudson  River  R.  R.  Co.,  4  E.  D.  Smith,  181;  Central 
Trust  Co.  V.  Wabash,  etc.,  Ry.  Co.,  39  Fed.  Rep.  417);  an  opera  glass 
(Toledo,  etc.,  R.  Co.  v.  Hammond,  33  Ind.  379) ;  fire  arms  (Wood  v. 
Devins,  13  III.  746)  ;  manuscript  boolis  of  a  student  (Hopkins  v.  West- 
cott,  6  Blatch.  64);  an  illustrated  catalogue,  prepared  and  used  by  a 
traveling  salesman  (Staub  v.  Kendrick,  121  Ind.  226 ;  23  N.  E.  Rep.  79) ; 
mechanic's  tools  (Kansas  City,  Ft.  Scott,  etc.,  R.  Co.  v.  Morrison,  34 
Kan.  602;  55  Am.  Rep.  252);  surgical  instruments  carried  by  a  surgeon 
(Hannibal  R.  Co.  v.  Swift,  12  Wall.  262),  a  carpenter's  tools  (Porter  v. 
Hildebrand,  14  Pa.  St.  129);  a  watch  (Jones  v.  Voorhees,  10  Ohio,  146), 
linen  (Duffy  v.  Thompson,  4  E.  D.  Smith,  178),  lace  for  the  use  of  a 
Russian  lady  traveling  in  this  country  (New  York  Central,  etc.,  R.  Co. 
V.  Fraloff,  100  U.  S.  24),  bedding  of  a  steerage  passenger  (Hirschon  v. 
American  Packet  Co.,  2  J.  &  S.  (N.  Y.  Superior  Court  521) ;  but  not 
when  packed  in  a  trunk  and  not  used  for  the  voyage  (Conolly  v.  Warren, 
106  Mass.  146),  a  reasonable  sum  of  money  for  traveling  expenses  (Mer- 
rill V.  Grinnell,  30  N.  Y.  694;  Fairfax  v.  N.  Y.  Central,  etc.,  R.  Co.,  73 
N.  Y.  167;  Dunn  v.  New  Haven  Steamboat  Co.,  58  Hun,  461;  12  N.  Y, 
S.  Rep.  406.  $90,000,  is  not  "  luggage."— Pflster  v.  Central  Pac.  R.  Co., 
70  Cal.  169;  11  Pac.  Rep.  686,  supra.  "  What  is  a  reasonable  amount  of 
money  for  traveling  expenses  depends  on  the  length  of  the  journey,  the 
mode  of  travel,  the  position  in  life  of  the  passenger,  and  should  not  ex- 
ceed what  a  prudent  person  would  take  with  him  under  the  circum- 
stances. What  is  such  an  amount  Is  a  question  for  the  jury. —  Thomp. 
Carriers  of  Passengers,  511. 

Indeed,  it  is  difficult  to  lay  down  any  general  rules  as  to  what  consti- 
tutes baggage.  One  writer  has  said:  "  The  rules  adopted  by  the  courts 
as  to  what  constitutes  ordinary  baggage  are  not  always  consistent  nor 
uniform,  and  the  doctrine  of  some  of  the  cases  carried  out  to  their  legit- 
imate sequence  would  almost  admit  of  a  passenger  taking  along  with 
him  his  entire  household  furniture  if  he  is  a  poor  man,  and  needs  the 
furniture  for  use  at  the  end  of  his  journey,  and  it  can  be  packed  in  trunks 
or  boxes."— 3  Wood  on  Railways,  1800  (citing  Oumit  v.  Henshaw,  35 
Vt.  604,  and  Parmelee  v.  Fisher,  22  111.  212). 

Theatrical  paraphernalia,  advertising  matter,  etc.,  not  required  for 
the  pleasure  or  necessity  of  members  of  the  troupe  during  the  journey, 
are  not  "baggage."  —  Oakes  v.  Northern  Pac.  R.  Co.,  20  Ore.  392;  26 
Pac.  Rop.  230. 


IJAOQAUl!: LIMITINO    I.lvr.U.lTY.  3G5 

only  ('  ).  AVitli  respect  to  passongcFs'  luggagro  deposited 
ill  !i  cloak-room,  the  railway  companies  always  endeavor 
to  attach  spi'cial  conditions  to  this  contract  of  bailment. 
The  conditions  must  bo  reasonal)ly  shown  to  be  jn-escnt 
to  the  mind  of  the  passenger,  or,  at  all  events,  the  cir- 
cumstances must  bo  such  as  to  lead  to  tho  iuferenco 
tiiat  ho  mu-t   have  known  of  the  conditions  (d).     If  the 

(c)  Si-arlo  r.  l^uverlck,  L.  It.  9  0-  15-  Ul)  Watklns  r.  UymlU.lOO-B.  D.  1T8. 

1«. 


It  has  been  held  that  merchandise  is  not  bapfrasje  (Ilutchings  r.  West- 
ern, etc.,  11.  Co.,  25  Ga.  61;  Mississippi  K.  Co.  v.  Kennedy,  41  Miss. 
671;  Collins  v.  Boston,  etc.,  R.  Co.,  10  Cush.  50(1;  Smith  v.  Boston,  etc., 
R.  Co.,  44  N.  H.  325;  Metz  r.  California  S.  R.  Co.,  85  Cal.  329;  24  Pac. 
Rep.  010;  Bluraentbal  v.  Maine  Cent.  R.  Co.,  79  Me.  550;  11  Atl.  Rep. 
605;  Spooner  v.  Hannibal  &  St.  J.  R.  Co.,  23  Mo.  App.  403);  and  thi.s 
inclndes  samples  carried  by  a  sale!?man  (Stimpson  v.  Connecticut  River 
R.  Co.,  98  Mass.  83;  Southern  Kan.  Ry.  Co.  v.  Clark,  52  Kan.  398;  34  Pac. 
Rep.  1054;  Talcott  v.  Wabash  R,  Co.,  6G  Hun,  45C;  21  N.  Y.  S.  Rep.  318; 
Humphreys r.  Perry,  148  U.  S.  627;  13  S.  Ct.  Rep.  711 ;  Gurney  v.  Grand 
Trunk  Ry.  Co.,  59  Hun,  625;  14  N.  Y.  S.  Rep.  321) ;  neither  is  the  prop- 
erty of  another  person  (Dnnlap  v.  International  Steamboat  Co.,  98  Ma.>-s. 
871;  Andrews  v.  Ft.  Worth  &  D.  C.  Ry.  Co.  (Tex.  Civ.  App.),  25  S. 
W.  Rep.  104C);  nor  a  manuscript  of  a -work  intended  for  publication 
(Hannibal,  etc.,  R.  Co.  v.  Swift,  12  Wall.  2C)2)  ;  but  a  carrier  may  be  held 
liable  for  merchandise  by  accepting  it  as  baggage,  though  knowing  it 
is  not  baggage. —  Ross  v.  Minn.  R.  Co.,  4  Mo.  App.  682;  Hannibal,  etc., 
R.  Co.  r.  Swift,  12  Wall.  2C2;  Texas,  etc.,  R.  Co.  v.  Capps,  S.  C.  Tex.  18 
Cent.  Law  Jour.  211.  Contra,  Blumantle  i'.  Fitchburg  R.  Co.,  427  Mass. 
822. 

Llmltingr  Liability. —  A  carrier  cannat  limit  its  liai)ility  for  passengers' 
baggage,  by  a  notice  printed  upon  a  ticket  or  check,  lliat  the  baggage  is 
at  the  risk  of  the  owner. —  Camden,  etc.,  R.  Co.  v.  Belknap,  21  Wend. 
864;  Malone  v.  Boston,  etc.,  R.  Co.,  12  Gray,  388. 

A  mere  notice  on  the  back  of  a  ticket  limiting  the  liability  of  the  car- 
rier does  not  raise  the  presumption  that  the  pa.ssengcr  read  the  same. — 
Rawson  v.  Pennsylvania  R.  Co.,  48  N.  Y.  212:  Mobile,  etc.,  R.  Co.  r.  Hop- 
kins, 41  Ala.  486;  Brown  v.  Eastern  R.  Co.,  11  Cush.  97.  But  where  the 
passenger  had  time  to  examine  such  notice  before  embarking,  he  Is  bound 
thereby  —  Potter  v.  The  Majestic.  60  Fed.  Rep.  624;  9  C.  C.  A.  161. 

A  carrier's  ticket  is  not  a  contract,  and  the  purchase  of  a  ticket  does 
not  bind  the  passenger  to  assent  to  its  terms. —  Malone  v.  The  Boston, 
etc.,  R.  Co.,  12  Gray,  388. 


366  MORE   THAN   ORDINARY    CARE. 

jury  think  that  the  circumstances  were  such  as  to  lead  to 
[294]  the  inference  that  the  passenger  had  no  reasonable 
notice  that  there  Were  any  conditions  in  existence  he  would 

It  has  been  held  in  Pennsylvania  that  a  railroad  company  may  limit  its 
liability  for  the  bagirage  of  a  passenger  by  a  general  notice,  but  the  terms 
of  the  notice  must  be  clear  and  explicit,  and  knowledge  of  such  notice 
must  be  brouglit  home  to  the  passenger. —  Pennsylvania  Central  R,  Co. '-. 
Schwarzenberger,  45  Pa.  St.  208. 

Through  Ticket. —  A  carrier  selling  a  through  ticket  to  a  passenger 
to  a  certain  point  is  bound  to  carry  him  safely  to  that  point  though  it  is 
beyond  the  carrier's  line  and  over  the  lines  of  connecting  carriers. —  Illi- 
nois Cent.  R.  Co.  v.  Copeland,  24  111.  337;  Central  R.  Co.  v.  Combs,  70 
Ga.  533;  Burnell  v.  New  York,  etc.,  R.  Co.,  45  N.  Y.  184;  Candee  v.  Rail- 
road Co.,  21  Wis.  582.  But  not  unless  the  initial  carrier  expressly 
assumes  the  additional  liability. —  Central  Trust  Co.  v.  Wabash,  etc.,  R, 
Co.,  31  Fed.  Rep.  247. 

The  weight  of  authority  is  in  favor  of  this  rule. —  Thomp.  Carriers 
Passengers,  432. 

Such  contract  is  a  contract  with  each  several  carrier. —  Lin  v.  Terre 
Haute,  etc.,  R.  Co.,  10  Mo.  App.  125. 

There  are  authorities  holding  that  the  carrier  is  not  liable  beyond  the 
end  of  its  route,  and  Mr.  Rorer  lays  it  down  that  "  the  purchaser  of  a 
through  ticket  over  several  connecting  but  not  uniting  lines,  who  checks 
his  baggage  over  said  lines  is  entitled  to  recover  for  the  loss  only  from  the 
company  upon  whose  line  it  is  lost. —  2  Rorer  on  Railways,  p.  997 ;  citing 
Kessler  v.  New  York  Central,  etc.,  R.  Co.,  61  N.  Y.  538;  Philadelphia, 
etc.,  R.  Co.  V.  Harper,  29  Md.  339;  Chicago,  etc.,  R.  Co.  v.  Fahey,  52  111. 
81,  and  see  Thomp.  Carriers  of  Passengers,  433;  Savannah,  F.,  etc.,  Ry. 
Co.  V.  Mcintosh,  73  Ga.  532. 

A  just  and  reasonable  rule  would  seem  to  be  that  the  passenger  may 
hold  the  llrst  carrier  liable  in  any  event.  He  is  than  relieved  of  the  bur- 
den of  proving  by  which  carrier  the  loss  was  caused. —  Kessler  v.  New 
York  Central,  etc.,  R.  Co.,  61  N.  Y.  538;  Barter  v.  Wheeler,  49  N.  H.  9; 
Illinois  Central  R.  Co.  v.  Frankenberg,  54  111.  88;  Hyman  v.  Central  Vt. 
R.  Co.,  66  Ilun,  202;  21  N.  Y.  S.  Rep.  119;  Talcott  v.  Wabash  R.  Co.,  G6 
Hun,  456;  21  N.  Y.  S.  Rep.  318.  See  as  to  liability  of  connecting  car- 
riers as  partners.  Block  v.  Railroad  Co.,  139  Mass.  308;  21  C.  L.  J.  506; 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Roach,  35  Kan.  740;  12  Pac.  Rep.  93. 

Arrival  of  Baggage. —  When  the  baggage  has  reached  its  destination, 
and  the  passenger  has  had  a  reasonable  opportunity  of  receiving  and 
removing  it,  the  carrier's  liability  as  such  ceases. —  Rock  Island,  etc.,  R. 
Co.  V.  Falrclough,  52  111.  106;  Louisville,  etc.,  R.  Co.  v.  Mahan,  8  Bush, 
184;  Burgevin  v.  New  York  C.  &  H.  R.  Co.,  69  Hun,  479;  23  N.  Y.  S. 
Rep.  415;  Bonner  v.  De  Mendoza  (Texas),  16  S.  W.  Rep.  976;  Gulf,  C. 


rASSENOIiKS IJACJOAOE.  367 

not  [295]  ho  hoiiiul,  tnit  il'  ilivy  lind  the  contrary  and 
that  the  passenger  did  not  choose  to  read  them,  he  would 
he  hound  (<). 

[2'.Mj]  Carriers  of  passengers  are  not  insurers,  hut  are 
only  liahle  wiiere  negligence  is  proved  (/).  It  seems  that 
the  driver  of  a  stage-coach  ought  to  inform  the  passengers 
of  any  danger  of  the  road,  so  tluft  they  may  have  the  option 
of  alighting  (y). 

A  person  who  lets  out  carriages  is  not  an  insurer  against 
all  defects,  hut  he  is  an  insurer  against  all  defects  which 
care  and  skill  can  guard  against,  and  his  duty  is  to  supi)Iy 
carriages  as  perfect  for  the  purpose  as  care  and  skill  can 
render  them.  Something  more  than  ordinary  care  and 
attention  is  required.     The  expression  often  used  of  "  rea- 

(<)  Van  Tol  v.  S.  K.  Ry.  Co.,  12  C.  B.  see  the  recent  case  of  Harko  v,  8.  K.  Uy. 

K.  S.  75;  31  L.  J.  C.  P.  241 ;  (ticket  condl-  Co..  49  L.  J.  C.  1'.  107;  L.  U.  5  C.  T.  D.  p. 

tion  on  back);  Parker  i\  S.  E.  Ry.  Co.,L.  1;  Watkins  v.  llyra\l\,  supra  (repository 

R.  2  C.  P.  D.  416 ;  C.  A.  4G ;  L.  J.  C.  P.  7C8 ;  ticket,  refcrrinK  on  the  face  oflt  to  con- 

Uendcrson  r.  Stevenson,  L.  U.  2  Sc.  App.  dltlond) ;  sec  also  other  canes  as  to  notl- 

470   (ticket,  on  face  "see  back");    the  ces  of  conditions  of  carriage,  pp.  277- 

dcfendant  was  acting  In  his  capacity  as  281 ;  [see  in/ra]. 

carrier,  not  warehouseman  In  this  case.  (/)  Redhead  v.  Mid.  Ry.  Co.,  L.  R.  4 
Harris  c.  Gt.  W.  Ry.  Co.,  L.  R.  1  Q.  15.  D.  Q.  IJ.  379;  3S  L.  J.  Q.  U.  ICO;  Kx.  Ch.  liar- 
S13;4i  L.  J.  Q.  IJ.  729  (ticket,  on  face  rls  r.  Costar,  1  C.  &  P.  GIJC;  White  r.  lJoul- 
"  subject  to  conditions  on  other  side.")  ton,  Peake,  81 ;  Christie  v.  Griggs,  2 
In  the  last  two  cases  the  plaintiff  knew  Campbell,  79;  Urofts  v.  Waterhouse,  11 
there  was  writing  on  the  back,  but  did  Blng.  :J19  (stage-coaches). 
not  know  or  believe  there  wore  any  con-  (jr)  Dudley  v.  Smith,  1  Camp.  167. 
ditlons,  and  he  was  held  not  bound;  but 


&.  S.  F.  Ry.  Co..r.  Jackson  (Texas),  95  S.  W.  Rep.  128;  Laffrey  v. 
Grumraond,  74  Mich.  180;  41  N.  W.  Rep.  894;  Jacobs  v.  Tutt,  33  Fed. 
Itep.  412. 

After  that  it  is  only  liable  as  warehouseman. —  Jones  v.  Railroad  Co., 
50  Barb.  193;  Roth  v.  Railroad  Co.,  34.  N.  Y.  548;  Galveston,  H.  &  S.  A. 
Ry.  Co.  V.  Smith,  81  Tex.  479;  17  S.  W.  Rep.  133;  Chicago  &  A.  R.  Co. 
».  Addlzoat,  17  111.  App.  632. 

What  is  a  reasonable  time  for  a  passenger  to  claim  and  remove  his 
baggage  is  a  question  of  fact  to  be  determined  liy  the  jury. —  Ouimit  r. 
Henshaw,  35  Vt.  (502;   LouisviUe,  etc.,  R.  Co.  v.  Mahan,  8  Bush,  135. 

In  the  case  last  cited  where  baggage  was  left  over  night  at  a  station, 
which  was  destroyed  i)y  fire  together  witli  its  contents,  tlie  carrier's  liabil- 
ity was  held  to  be  that  of  a  bailee  for  hire.  S.  P.,  Wald  v.  Louisville, 
etc.,  R.  Co.,  92  Ky.  G45;   18  S.  W.  Rep.  850. 


368  MORE    THAN   ORDINARY    CARE. 

sonably  fit"  is  ambiguous.  It  denotes  something  short  of 
<*  absolutely  fit,"  but  the  difference  is  not  great  (h). 

[297]  The  duty  of  railway  companies,  as  carriers  of 
passengers,  is  to  take  due  care  (including  in  that  term  the 
use  of  skill  and  foresight)  (t),  and  they  seem  bound  to  take 
more  than  ordinary  care  by  reason  of  the  danger  to  which  pas- 
sengers are  exposed  in  traveling  at  a  great  speed,  and  without 
any  power  to  avoid  or  mitigate  any  danger  which  may  arise. 

This  duty  arises  out  of  the  contract  to  carry  between 
themselves  and  the  passenger,  and  is  superadded  by  the 
law  to  the  contract.  The  passenger,  upon  being  injured 
by  the  breach  of  this  duty,  may  elect  to  sue  in  the  form 
of  tortor  of  contract,  but  the  foundation  of  the  action  is  the 
contract  (^'). 

This  contract  seems  to  be  made  by  the  fact  of  the  pas- 
senger being  lawfully  within  the  carriage,  and  it  is  imma- 
terial whether  he  himself  negotiated  the  contract  or  paid 
the  fare  (I). 

But,  where  a  servant  has  taken  a  railway  ticket  for 
himself,  and  sustains  injuries  by  reason  of  the  company's 
negligence,  the  master  cannot  sue,  because  the  tort  arises 
out  of  a  contract  to  which  the  master  is  not  a  party,  and 
there  is  no  duty  towards  the  master  (m),  but,  quccre, 
whether  the  master  could  sue  if  he  had  taken  the  ticket 
himself:  probably  not  unless  he  had  given  notice  to  the 
company  that  he  was  paying  for  the  conveyance  of  his  serv- 
ant. But  where  the  servant  who  has  taken  a  ticket  from 
one  company  has  been  injured  by  the  wrongful  act  of  an- 
other company  with  whom  neither  master  nor  servant  has 
contracted,  the  master  may  sue  (n).     It  should  seem  that 

(h)  Ilyman  v.  Nye,  6  Q.  B.  D.  685.  442;  36  L.  J.  Q.  B.  201  (mother  took  child 

(t)  Redhead  v.  Mid.  Ry.  Co.,  supra.  over  age  without  ticket). 

(A)  Alton  V.  Mid.  Ry.  Co.,  34  L.  J.  C.  (m)  Alton  v.  Mid.  Ry.  Co.,  supra;  see 

V.  202 ;  19  C.  B.  N.  S.  213.    [Fairmount  R.  Ames  v.  Union  Ry.  Co.,  117  Mass.  541 ;  19 

R.  r.  .Stutlcr,  54  Pa.  St.  375  ]  Am.  Rep.  426. 

(/)  Marshall  v.  Y.  &  N.  Ry.  Co.,  11  C.  («)  Berrlnger  v.  Gt.  Eaet.  Ry.  Co.,  48 

B.  C55  (master  took  ticket  for  servant) ;  L.  J.  C.  P.  D.  400 :  4  C.  P.  D.  163 ;  Lopes,  J. 
AuBlin  V.  G.  W.  Ry.  Co.,  L.  R.  2  Q.  B. 


KAII.W.W    COMrAMI^S  COMUVCT.  3<II* 

this  lo'st  case  tlid  not  turn  on  a  question  of  nojrlifronrc,  there 
Iti'ing  no  duty  to  be  done  on  tiio  part  of  siuli  other  coin- 
[298]  pany;  hut  the  act  of  such  other  company  was 
regarded  as  a  mere  trespass,  and  the  master  sui'il  for  loss 
of  services  occasioned  by  such  trespass.  The  servant  was 
injured  by  the  train  of  another  company  (the  defenchmt's) 
running  into  his  train. 

It  must  be  owned  that  it  is  not  eas}'  to  see  why,  in  jus- 
tice, the  railway  company  in  Alton  v.  Midland  Railway 
Company  were  less  liable  because  they  had  contracted  to 
carry  safely,  than  if  they  had  not  contracted.  It  seems, 
however,  to  follow  logically  enough  if  the  distinction  be- 
tween contracts  and  torts  where  a  duty  is  undertaken  is  to 
be  maintaincil.  This  question  has  received  further  illus- 
tration fiom  two  recent  cases.  In  Fleming  v.  The  iSIan- 
j Chester,  Sheffield,  and  Lincolnshire  Railway  Company  (o), 
j  which  was  an  action  for  *' not  safely  and  securely  car- 
rying" goods,  it  was  held  that  the  action  was  substan- 
Itially  founded  in  contract  within  the  meaning  of  the  County 
'Court  Act  (/)),  so  that  the  plaintiff  having  accepted  £12 
paid  into  court,  was  not  entitled  to  costs.  In  Foulkcs  v. 
Metropolitan  District  Railway  Company  (7),  however, 
fthe  plaintiff,  on  alighting  from  one  of  defendants'  carriages, 
jwas  injured  by  reason  of  the  carriage  being  unsuited  to  the 
iplatform.  Grove,  J.,  thought  that '*  the  defendants  hav- 
iing  invited  or  knowingly  permitted  the  plaintiff  to  enter 
their  carriage,  by  that  alone  undertook  to  carry  him  safely, 
and  that  they  had  also  invited  him  by  putting  up  a  notice 
and  by  other  circumstances,  that  they  were  therefore  bound 
to  keep  their  carriages  and  means  of  descent  in  a  reasonable 

(0)  FIomlni;r.  M.  8.  L.  Ry.  Co.,  L.  II.  alllrmed  In  the  Court  of  Appeals,  5  C.P. 

«  Q.  U.  U.  ,si,  c.  A. ;  Talton  i\  G.  W.  Uy.  1>.  \:u.  nrnmwell,  I..  J.,  said  there  was  n 

r*"-,  2  K.  A  E.  S4I,  must  bo  considered  breach  of  "  llie  duty  which  the  law  Im- 

overmlcd  hy  this  case.  poscH  upon  nil,  viz  ,  to  do  no  net  to  injure 

(p)  »)  A  :u  Vict.  c.  112,  fl.  5.  nnotlicr,"    and  I'.aK'pallay  and  The.>iijrer, 

<.q^  Poulkesr  Met.  IHst.  Ky.  Co.,  L.  R.  I-.  .U.,  eiiiiili:iil<a!ly  rest  the;r  Judpiiient 

D.  P.  D.  2i>7 ;  48  L.  J.  C.  I*.  5.55.  The  de-  on  a  breach  of  duty  and  not  of  coulract. 
:Uion  In  Foulkcs  v.  Met.   Ry.  Co.  was 


370  MORE   THAN   ORDINARY   CARE. 

and  proper  state  of  safety,  and  that  the  mere  fact  that  the 
ticket  was  issued  by  the  South  Western  Eailway  Company, 
[299]  which  in  the  absence  of  anything  else,  might  be 
t'viuence  of  a  contract  on  which  the  jury  ought  to  act, 
does  not  necessarily  exempt  the  defendants  from  any  con- 
tract, if  a  contract  is  needed  in  the  case;  but,  at  all  events, 
does  not  exempt  them  from  the  liability  which  they  under- 
take when  they  receive  a  person  into  a  carriage  which  is 
under  their  control."  The  learned  judge  cites  the  case  of 
Marshall  v.  York,  Newcastle  and  Berwick  Railway  Com- 
pany (?■),  and  the  expression  used  by  Jervis,  C.  J.: 
"  Upon  what  principle  does  the  action  lie  at  the  suit  of  the 
servant  (who  had  taken  no  ticket)  for  his  personal  suflPer- 
ing?  Not  by  reason  of  any  contract  between  him  and  the 
company,  but  by  reason  of  a  duty  implied  by  law  to  carry 
him  safely."  Williams,  J.,  in  that  case  said  that  "an 
action  of  this  sort  is,  in  substance,  not  an  action  of  con- 
tract,  but  an  action  of  tort  against  the  company  as  car- 
riers." In  Austin  v.  Great  Western  Railway  Company  (s) 
which  was  a  case  where  a  woman  took  a  ticket  for  her- 
self, but  bona  fide  omitted  to  take  one  for  her  child,  over 
age,  who  was  injured,  Cockburn,  C.  J.,  Lush  and  Shee, 
JJ.,  rested  their  judgments  on  the  contract  being  entire  to 
carry  both  mother  and  child;  but  Blackburn,  J.,  rested  the 
case  on  the  fact  of  the  child  being  a  passenger,  which  raised 
the  implied  duty  to  carry  him  safely.  It  must  be  owned 
that  the  cases  are  conflicting;  but  they  may  possibly  be  ex- 
plained upon  the  ground  that  when  the  parties  have  entered 
into  a  contract  with  respect  to  the  duty  to  be  undertaken, 
they,  in  substance,  intend  to  rely  upon  the  contract  and  the 
incidental  duties  which  the  law  superadds;  but  if  the  parties 
have  not  entered  into  any  agreement  upon  the  matter,  their 
original  duties  remain  unvaried,  and  a  breach  of  such  duties 
is  a  tort.     But  if  this  be  so,  it  seems  that  great  injustice 

rr)  Supra.  (s)  Austin  v.  Great  Western  Ky.  Co.. 

L.  K.  2  Q.  B.  442;  36  L.  J.  Q.  B,  201. 


KAll.WAV    CO.MrAMi:>  —  CONTIIACT.  371 

tnav  1)1'  <l<)ne.  Practically,  a  [)a.s.scnf]jer  is  boiiinl  to  take  a 
ticket,  that  is  to  make  a  contract.  If,  therefore,  he  is  in- 
[300]  jiired,  but  not  beyond  1^20,  he  cannot  recover  costs, 
nolwithstandini;  he  briiii^s  his  action  in  "  tort,"  for  in  snb- 
'.tance  it  is  "  contract,"  whereas  if  he  did  not  take  a  ticket 
\^bona  fide  without  fraud),  he  raip^ht  recover  damages  and 

C0.'«t8. 

The  payment  of  any  money  b}'  the  plaintitT  to  the  defend- 
ant is  not  an  essentia!  })art  of  the  contract  to  carry,  out  of 
which  the  duty  arises  {I). 

A  railway  passenger  may  a^ree  to  travel  at  his  own  risk, 
uud  so  exclude  the  question  of  negligence  {u). 

In  actions  by  passengers  for  injuries  sustamed  in  a  collis- 
ion, the  question  has  frequently  been  raised  whether  the 
defendants  are  liable  in  consequence  of  the  person's  proxi- 
mately causing  the  injury  not  being  their  servants  or  under 
their  control.  These  questions  arise  where  another  com- 
pany has  running  powers  over  the  defendant's  line,  or  the 
''eleiKlants  have  running  powers  over  theirs  (x). 

(0  Marshall  v.  Y.   &  Newcastle  Ry.  N.  W.  Uy.  Co.,  L.  R.  9  C.  P.  325;  bnt 

Co.,  11  C.  H.  (i')S;  Q.  N.  Ry.  Co.  v.  Harri-  where  goods  were  sent  at  a  lower  rate, 

•on,  10  Exch.  37tj    (newfipaper  reporter  and  there  was  ar>  exception  as  to  "  wlll- 

trmTCllng  free).    Austin  i.  G.  W.  Ry.t;o.,  fill   nUscondiicl,"  it  was   held  that  the 

L.  R.  2  Q.  |{.  442;  :5(i  L.  J.  (^  U.  201  (child  goods  were  at  the  owner's  risk,  Lewis  r. 

inTclli.g  free) ;  l/-...s•^  pp.  3^7,  3S«].  G.  W.  Uy.  Co.,  3  Q.  B.  D.  195.    Sco«H(e,- 

(u)  Macaulay  v.  Fiirnes.s  Ry.  Co.,  42  L.  [post,  pp.  3S7,  :188J. 

J  Q.  ».  4 ;  L.  R.  8  Q.  IS.  t>1.    Rut  the  same  (./)  Wright  r.  Midland  Ry.  Co.,  L.  R.  8 

does  not  hold  as  to  goods;  D'Arcr.  L.  &  Kx.  1.57;  42  L.J.  Kx.  89. 

(i)  One  company  allowing  another  the  use  of  its  road  cannot  absolve 
Itself  from  the  negli^ont  acts  of  the  latter  causing  injuries.  —  Abbott  r. 
Johnstown,  etc.,  R.  Co.,  80  N.  Y.  27;  Illinois  Central  li.  Co.  v.  Barrou, 
5  Wall.  90;  Terre  Iluute  &  I.  R.  Co.  v.  Chicago,  etc.,  Ry.  Co.,  IJO  III. 
502;  37  N.  E.  Rip.  915;  Durfce  v.  Johnstown,  etc.,  R.  Co.,  71  Ilun,l'7H; 
23N.Y.  Rep.  lOlt;;  Cogswell  u.  West  St.,  etc.,  Ry.,  5  Was^h.  St.  4(J;  31  Pac. 
Rep.  411 ;  Georgia  R.  &  B.  Co.  v.  Ellison,  87  Ga.  G91 ;  IJ  S.  E.  Rep.  809; 
Pennsylvania  Co.  v.  Eilett,  132  111.  G54;  24  N.  E.  Rep.  5J9;  Palmer  o. 
Utah&N.  Ry.  Co.,  2  Idaho,  350;  16  Pac.  Rep.  553. 

And  in  the  absence  of  legislative  authority  a  company  cannot  by  con- 
tract or  lea.se  relieve  itself  fn)m  liability  for  the  torts  of  the  lessee.  — 
Neleon  v.  Vermont,  etc.,  R.  Co.,  2(J  Vt.  117;  Alexandria,  etc.,  R.  Co.  v. 


372  MORE    THAN    OKDINARY    CAKE. 

A  railway  company  may  be  negligent  either  in  respect  of 
its  duties  as  owner  of  the  line,  or  of  the  carriage,  or  of  both. 

Brown,  17  Wall.  445;  Ohio,  etc.,  R.  Co.  v.  Dunbar,  20  111.  623;  Bouknight 
».  Charlotte,  C.  &A.  R.  Co.,41  S.  C.  415;  19S.  E.Rep.  915;  Central  R.  &B. 
Co.r.  Passmore,  90  Ga.  203;  15  S.  E.  Rep.  760;  Lakin  v.  Willamette  Val. 
&C.  R.  Co.,  13  Ore.  436;  11  Pac.  Rep.  68;  Ricketts  v.  Chesapeake  &  0. 
Ry.  Co.,  33  W.  Va.  433;  10  S.  E.  Rep.  801;  Harmon  v.  Columbia  &  G.  R. 
Co.,  28  S.  C.  401;  5  S.  E.  Rep.  835;  International  &  G.  N.  R.  Co.  v. 
Moody,  71  Tex.  614;  9  S.  W.  Rep.  465;  International  &  G.  N.  R.  Co.  v. 
Underwood,  67  Tex.  589;  4  S.  W.  Rep.  216;  Nagle  v.  Alexandria  &  F,  Ry. 
Co.,  83  Va.  707;  3  S.  E.  Rep.  869;  Arrowsmith  v.  Nashville  &  D.  R.  Co., 
67  Fed.  Rep.  165;  Hart  v.  Charlotte,  etc.,  R.  Co.,  33  S.  C.  427;  12  S.  E. 
Rep. 9. 

Bui  remains  liable  for  the  negligence  of  the  lessee  as  though  it  oper- 
ated the  road  itself. —  Daniels  v.  Hart,  118  Mass.  543;  Macon,  etc.,  R. 
Co.  V.  Mayes,  49  Ga.  355. 

When  the  lessor  company  is  authorized  by  statute  to  lease  the  road, 
the  lessee  alone  becomes  liable  for  its  own  negligent  acts  (Mahoney  v. 
Atlantic,  etc.,  R.  Co.,  63  Me.  68;  Wasmer  v.  Delaware,  etc.,  R.  Co.,  80 
N.  Y.  312;  Philadelphia,  etc.,  R.  Co.u.  Anderson,  94  Pa.  St.  351;  Arrow, 
smith  V.  Nashville  &  D.  R.  Co.,  57  Fed.  Rep.  165;  Berry  v.  Kansas  City, 
etc.,  R.  Co.,  52  Kan.  759;  34  Pac.  Rep.  805;  Phillips  v.  Northern  R.  of 
N.  J.,  62  Hun,  233;  16  N.  Y.  S.  Rep.  909:  Virginia  M.  Ry.  (So.  v.  Wash- 
ington,  86  Va.  629;  10  S.  E.  Rep.  927),  unless  the  lessor  continues  lo 
operate  the  road  (Alexandria,  etc.,  R.  Co.  v.  Brown,  17  Wall.  445),  or 
allows  it  to  be  operated  in  its  corporate  name  (Bower  v.  Railroad  Co., 
42  la.  546),  or  unless  the  lease  fails  to  expressly  extmpt  the  lessor  from 
liability.—  Nugent  v.  Boston,  C.  &  M.  R.  Corp.,  80  Me.  62;  12  Atl.  Rep. 
797. 

Statutes  regulating  the  duties  and  obligations  of  lessor  and  lessee 
companies  prevail  in  some  States. 

In  some  States  if  cattle  are  killed  by  the  omission  of  the  duty  to  fence 
the  road,  the  lessor  and  lessee  are  both  liable.  —  Clement  v.  Canfleld,  28 
Vt.  302;  Wyman  v.  Penobscot,  etc.,  R.  Co.,  46  Me.  162;  McGrath  r.  New- 
York  Scntral,  etc.,  R.  Co.,  63  N.  Y.  522;  Oregon  Ry.  &  Nav.  Co.  v.  Dacres, 
1  Wash.  St.  525;  23  Pac.  Rep.  415. 

In  others  the  company  which  caused  the  injury  is  alone  liable.— Stev- 
ens V.  Davenport,  etc.,  R.  Co.,  36  la.  327. 

The  company  owning  the  road  is  not  liable  for  the  negligence  of  mort- 
gagees operating  it  (State  v.  Consolidated  European,  etc.,  R.  Co.,  67  Me. 
479;  Harper  v.  Newport,  N.  &.  M.  V.  R.  Co.,  99  Ky.  359;  14  S.  W.  Rep. 
346),  or  of  receivers.—  State  v.  Vermont  Central  R.  Co.,  30  Vt.  108. 

Unless  it  retains  control  of  the  road  in  whole  or  in  part  or  allows  its 
name  to  be  used.- Alexandria,  etc.,  R.  Co.  v.  Brown,  17  Wall.  445.  The 
trustee  of  mortgagees  is  the  agent  of  the  company.  —  Rio  Grande  R.  Co. 


UAILWAY    COMrANIES I'ASSENOKUS.  373 

or  ill  respect  of  its  user  of  them  us  a  carri<T.     Where  the 
(cideut juises  from  negligence  in  the  defendants u^ii  owners 

r.  Cross,  6  Ti-x.  Civ.  App.  454;  23  S.  W.  Hep.  521),  1001;  Baxter  r.  New 
York,  etc.,  Ry.  Co.  (Tex.  Civ.  App.),  22  S.  W.  Rep.  1002;  Northeastern 
H.  Co.  p.  Barnelt,  89  Ga.  399;   16  S.  E.  Rep,  492. 

The  lessee  company  is  liable  for  Injuries  to  per8on.s,  animals  or  prop- 
rty  by  reason  of  the  defective  condition  of  the  road  or  its  efiuipim-nts 
(Wasracrr.  Delaware,  etc.,  R.  Co.,  80  N.  Y.  312;  Miller  r.  New  York, 
L.  &  W.  R.Co.,125N.  Y.  ll-S;  2G  N.  E.  Rep.  35;  Filleld  v.  Same,  125  N. 
Y.  704;  26  N.  E.  Rtp.  752,  reversing,  3  N.  Y.  S.  Rep.  245;  Ea.st  I.iue  & 
Red  R.  Co.,  r.  Cnlhertson,  72  Tex.  375;  10  S.  W.  Rep.  70t;),  or  through 
inisraanagement  of  its  trains  or  negliijence  of  employes  (Clement  r.  Can- 
Held,  28  Vt.  302;  Peoria,  etc.,  R.  Co.  v.  Lane,  83  111.  448),  or  througli 
trespasses  of  servants. —  Chicago,  M.  &  N.  R.  Co.  v.  Eichman,  47  III. 
'.pp.  150. 

Unless  the  statute  provides  that  the  lessor  shall  be  liable — Quested 

.Vewburyport,  etc.,  Horse  R.  Co.,  127  Mass.  204. 

The  apjiarcnt  owner  and  actual  operator  of  a  railroad  is  liable  for  the 
oegltgence  of  its  officers  and  agents. —  Jackson I'ille,  T.  &  K.  W.  Ry.  Co. 
V.  Peninsular  L.,  T.  &  M.  Co.,  27  Fla.  157;  9  So.  Rep.  OGl;  Same  v.  Gar- 
rison, no  Fla.  557;  11  So.  Rep.  920;  Ft.  Scott,  W.  &  W.  Ry.  Co.  v.  Fort- 
ney,  51  Kan.  287;  32  Pac.  Rep.  904. 

In  the  case  of  Missouri  Pac.  Ry.  Co.  r.  Dunham  (C8  Tex.  231 ;  4  S.  W. 
Rep.  472),  it  was  held  that  both  lessor  and  lessee  were  responsible  for 
the  negligence  of  the  lessee,  for  the  reason  that  the  former  could  not, 
without  permission  of  the  legislature,  so  transfer  its  franchise  as  to  re- 
lease itself  from  liability,  and  that  the  latter  was  liable  because  in  actual 
operation  of  the  road. 

Passengers. —  Carriers  of  passengers  are  not  insurers;  but  they  are 
liable  for  even  the  slightest  negligence. —  Meier  v.  Pa.  R.  Co.,  f.4  Pa.  St. 
«6;  Jeffersonville,  etc.,  R.  Co.  v.  Hendricks,  20  Ind.  228;  Carroll  r. 
Stttten  Island  R.  Co.,  58  N.  Y.  126;  San  Antonio  &  A.  P.  Ry.  Co.  r. 
Long  (Tex.  Civ.  App.),  26  S.  W.  Rep.  114;  Douglas  v.  Sioux  City  St. 
Ry.  Co.  (Iowa),  58  N.  W.  Rep,  1070;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Brown,  4  Tex.  Civ.  App.  435;  23  S.  W.  R(  p.  618;  Spellman  r.  Lincoln 
Rapid  Transit  Co.,  36  Neb.  890;  ."5  N.  W.  Rep.  270;  Texas  Cent.  Ry.  Co. 
V.  Stewart,  1  Tex.  Civ.  App.  C42;  29  S.  W.  Rep.  962;  Chicago,  P.  &  St. 
L.  Ry.  Co.  V.  Lewis,  145  111.  67;  33  N.  E.  Rep.  960;  Atchison,  T.  & 
S.  F.  Ry.  Co.  r.  Frier  (Tex.  Civ.  App.),  22  S.  W.  Rep.  C;  Sears  r. 
Seattle  Con.  St.  Ry.  Co.,  7  Wash.  St.  286;  33  Pac.  Rep.  380;  O'Connell 
t.St.  Louis,  C.  &  W.  Ry.  Co.,  106  Mo.  482;  17  S.  \V.  Rop.  404;  Al.nbama 
Q.  S.  R.  Co.  V.  Hill,  93  Ala.  514;  9  So.  Rep.  722:  Smith  r.  Chicago  &  A. 
n.  Co.,  108  Mo.  243;  18  S.  W.  Rep.  971;  Montgomery  &  E.  Ry.  Co.  r. 
Wallette,  92  Ala,  209;  9  So.  Rep.  363;  Furnish  v.  Missoiiri  Pac.  Ry.  Co., 
102  Mo.  438;  13  S.  W.  Rep.  1044;  Gallagher  r.  Bowie,  60  Tex,  266, 


374  MORE  THAN  ORDINARY  CARE. 

of  the  line  or  carriage,  there  is  not  much  diflSculty;  but 
where  the  injury  arises  from  negligence  in  the  defendants 

But  carriers  are  not  required  to  exercise  "  the  greatest  possible 
care."  —  International  &  G.  N,  R.  Co.  v.  Welsh  (Tex.  Civ.  App.),  24  S. 
W.  Rep.  854;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Higby  CTex.  Civ.  App.),  26  S.W. 
Rep.  732;  Gilbert  v.  West  End  St.  Ry.  Co.,  160  Mass.  403;  36  N.  E.  Rep. 
60;  International  &  G.  N.  R.  Co.  v.  Welch,  86  Tex.  203;  24  S.  W.  Rep. 
390;  Fordyce  v.  Withers,  1  Tex.  Civ.  App.  540:  20  S.  W.  Rep.  766; 
Daugherty  v.  Missouri  R.  Co.,  97  Mo.  647;  11  S.  W.  Rep.  251;  Gulf,  C. 
&  S.  F.  Ry.  Co.  V.  Stricklin  (Tex.  Civ.  App.),  27  S.  W.  Rep.  1093. 

They  are  bound  to  exercise  the  highest  degree  of  care  and  vigilance  to 
secure  the  safety  of  their  passengers  in  the  construction  and  repair  of 
their  vehicles  and  road. —  Philadelphia,  etc.,  R.  Co.  v.  Boyer,  97  Pa.  St. 
91;  Carroll  V.  Staten  Island  R.  Co.,  58  N.  Y.  126;  Taylor  v.  Grand  Trunk 
Ry.  Co.,  48  N.  H.  304;  Simmons  v.  New  Bedford,  etc.,  R.  Co.,  97  Mass. 
368;  Pennsylvania  R.  Co.  v.  Roy,  102  U.  S.  451;  Lemmon  v-  Chanslor, 
68  Mo.  340;  Baltimore,  etc.,  R.  Co.  v.  W'ghtman,  59  Gratt.  431  ;  Louis- 
ville, N.  A.  &  Co.  Ry,  Co.  v.  Miller  (Ind.),  37  N.  E.  Rep.  343;  Gal- 
veston, H.  &  S.  A.  Ry.  Co.  v.  Waldo  (Tex.  Civ.  App.),  2&  S.  W.  Rep- 
1004;  Chicago,  P.  &  St.  L.  Ry.  Co.  v.  Lewis,  145  111.  67;  33  N.  E.  Rep. 
960;  Daub  v.  Yonkers  R.  Co.,  69  Hun,  138;  23  N.  Y.  S.  Rep.  268;  Taylor 
?j. Pennsylvania  Co.,  50 Fed.  Rep,  755;  Levyi;.  Campbell  (Texas),  19  S.  W. 
Rep.  438;  Birmingham  u.  Rochester  City  &  B.  R.  Co.,  63  Hun,  635;  18  N. 
Y.  S.  Rep.  649;  Texas  &  P.  Ry.  Co.  v.  Hamilton,  66  Tex.  92;  17  S.  W. 
Rep.  406;  Watson  t\  St.  Paul  CityRy.  Co.,  42  Minn.  46;  43  N.  W.  Rep.  904. 

They  are  not  liable,  however,  for  latent  defects  in  their  appliances 
Vfhich  could  not  have  been  discovered  by  the  best  usual  known  tests. — 
Hegeman  v.  Western  R.  Corp.,  13  N.  Y.  49 ;  Peoria,  etc.,  R.  Co.  v.  Thomp- 
son, 56  111.138;  Wood  on  Railways,  p.  1227;  Thomp.  Carriers  «;f  Passen- 
gers, 200;  MoPaddeu  v.  New  York,  etc.,  R.  Co.,  40  N.  Y.  478;  Robinson 
».  N.  Y.  Central  R,  Co.,  9  Fed.  Rep.  877;  Warren  v.  Fitchburg  R.  Co.,  8 
Allen,  227;  Fordyce  v.  Withers,  1  Tex.  Civ.  App.  540;  20  S.  W.  Rep.  766; 
Tex.  &  P.  Ry.  Co.  v.  Buckalew,  3  Tex.  Civ.  App.  272;  22  S.  W.  Rep.  994; 
Irelson  w.  Southern  Pac.  Ry,  Co,  (La.),  7  So.  Rep.  800. 

"Railway  passenger  carriers,"  say  the  court,  in  Meier  v.  Pennsylvania 
R.  Co.  (64  Pa.  St.  225),  "  are  bound  to  use  all  reasonable  precautions 
against  injury  to  passengers;  and  these  precautions  are  to  be  measurec; 
by  those  in  known  use  in  the  same  business  which  have  been  proved  by 
experience  to  be  efficacious.  The  company  are  bound  to  use  the  best 
precautions  known  to  practical  use." 

They  are,  therefore,  not  relieved  of  liability  by  alleging  that  they  pur- 
chased their  appliances  from  manufacturers  of  good  reputation.—  Carroll 
V.  Staten  Island  R.  Co.,  58  N.  Y.  126;  Hegeman  v.  Western  R.  Corp.,  13 
N.  Y.  9;  Wood  on  Railways  (1894),  p.  1227;  Louisville,  N.  A.  &  C.  R.v- 
Co.  V.  Snider,  117  Ind.  435;  20  N.  E.  Rep.  284. 


RAILWAY    COMPANIES PASSENQEH8.  375 

in  respect  of  their  duty  as  carriers,  the  question  becomes 
ODO  of  considerable  diOiculty;   for   as    carriers   they  may 

The  duty  of  the  company  in  the  exercise  of  that  degree  of  care  which 
the  law  imposes  upon  tliem  extends  not  only  to  the  furnishing  of  proper 
and  suitable  vehicles  for  transportation,  but  to  the  construction  and 
repair  of  its  road.  They  must  provide  against  usual  storms  or  fnshets 
and  In  one  case  it  was  held  that  they  must  provide  against  extraordinary 
freshets  when  the  injury  could  have  been  avoided  by  the  construction  of 
proper  culverts. —  Philadelphia,  etc.,  li.  Co.  v.  Andenson,  94  Pa.  St.  351. 
Bat  they  are  not  liable  for  injuries  resulting  from  unforeseen  causes,  as 
the  breaking  of  a  rail  by  an  extreme  frost  (McPadden  v.  New  York  Cent. 
R.  Co.,  44:  N.  Y.  478;  Canadian  Pac.  Ry.  Co.  v.  Chalifaux,  22  Can.  S.  C. 
R.  721;  or  the  misplacement  of  a  switch  by  a  third  person  without  their 
fault.— Friuk  v.  Potter,  17  111,  40G. 

While  the  carrier  must  exercise  the  highest  degree  of  care  f-ir  the 
safety  of  the  passenger;  the  passenger  is  not  relieved  of  the  duty  of 
exercising  ordinary  care  himself  and  if  by  failing  to  exercise  such  care 
he  la  Injured  he  cannot  recover. 

Boarding  Moving  Train. —  It  has  accordingly  been  held  that  when  a 
pa8sen;:er  voluntarily  places  himself  in  a  dangerous  position  as  inboard- 
lug  a  moving  train  and  is  injured  he  will  be  guilty  of  such  contributory 

'lig(.nceas  will  bar  a  recovery. —  Harper  v.  Erie  Ry.  Co.,  32  N.  J.  L.  88; 
'lug  V.  New  York  Cent.  R.  Co.,  3  Lans.  4Gi);  Chicago,  etc.,  R.  Co.  v. 
>cates,  90  111.  58(5;  Vicksburg,  etc.,  R.  Co.  v.  Hart,  Gl  Miss.  408;  Knight 
?.  Ponlchartrain  R.  Co.,  23  La.  An.  462;  Hays  v.  Wabash  Ry.  Co.,  51  Mo. 
App.  43S;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Koehler,  41  111.  App.  147;  Car- 
roll r.  Interstate  R.  T.  Co.,  107  Mo.  053;  17  S.  W.  Rep.  889;  French  w. 
Detroit,  etc.,  Ry.  Co.,  89  Mich.  537;  50  N.  W.  Rep.  914;  Hunter  v.  Coop- 
ertown  &  S.  V.  R.  Co.,  126  N,  Y.  18;  26  N.  E.  Rep.  958,  Spannagle  v. 
Chicago  &  A.  R.  Co.,  31  111.  App.  460;  Bacon  v.  Delaware,  etc.,  R.  Co. 
(Pa.),  21  Atl.  Rep.  1002;  28  W.  N.  C.  233;  McMurtry  v.  Louisville,  etc., 
Ry.  Co.,  09  Mass.  601;  7  So.  Rep.  401;  Hanrahan  w.  Manhattan  Ry.  Co., 
63  Han,  420;  6  N.  Y.  S.  Rep.  395;  Missouri  Pac.  R.  Co.  v.  Texas  &  Pac. 
n  Co..  36  Fed.  Rep.  379;  Richmond  &  D.  R.  Co.  v.  Pickleseimer,  85  Va. 
7'.'e-    .  J  S    E.  Rep.  44. 

But  this  may  be  a  question  of  fact  for  the  jury,  whether  the  pas- 
senger was  negligent  or  not.— Chicago,  etc.,  R.  Co.  v.  Randolph,  53  111. 
513;  Johnson  v.  Westchester  R.  Co.,  70  Pa.  St.  357;  Illinois,  etc.  R.  Co., 
V.  Abel,  59  111.  131;  Swigert  v.  Hannibal,  etc.,  R.  Co.,  75  Mo.  475;  Texas, 
etc.,  R.  Co.  V.  Murphy,  46  Tex.  356;  Jackson  v.  St.  Louis,  etc.,  Ry.  Co., 
29  Mo.  App.  495;  Baltimore  &  O.  R.  Co.  v.  Kane,  69  Md.  11;  13  Atl. 
Rep.  387. 

As  where  the  train  was  moving  slowly  and  did  not  stop  at  the  sta- 
tion.—Chicago,  etc.,  R.  Co.  V.  Randolph,  53  111.  513;  Fulks  v.  St.  Louis  & 
S-  F.  Ry.  Co.,  Ill  Mo.  335;  19  S.  W.  Rep.  818. 


'616  MORE   THAN    ORDINARY   CARE. 

be  using  the  line  or  the  carriage  of  another  company,  and 
they  have  undertaken  a  duty  towards  the  plaintiff  by  con- 

Or  the  passenger  was  directed  by  the  servants  of  the  company  to 
make  the  attempt. —  Detroit,  etc.,  R.  Co.  v.  Curtis,  23  Wis.  152.  See 
Distler  v.  Long  Island  R.  Co.,  78  Hun,  252;  28  N.  Y.  S.  Rep.  865;  Hunter 
V.  Coopertown  &  S.  V.  R.  Co.,  112  N.  Y.  371 ;  19  N.  E.  Rep.  820;  Kansas 
&  G.  S.  L.  R.  Co.  V.  Dorough,  72  Tex.  108;  10  S.  W.  Rep.  711. 

Whether  the  train  stopped  long  enough  for  passengers  to  get  on  may 
affect  the  question. —  Swigert  v.  Hannibal,  etc.,  R.  Co.,  75  Mo.  475. 

The  same  general  rule  applies  to  street  cars  (Baltimore  Traction  Co. 
V.  State,  78  Md.  409;  28  Atl.  Rep.  397;  Woo  Dan  v.  Seattle  E.  Ry.  &  P. 
Co.,  5  Wash.  St.  46G;  32  Pac.  Rep.  108;  Morrison  v.  Broadway  &  S.  A.  R. 
Co.,  130  N.  Y.  166;  29  N.  E.  Rep.  105;  Sahlgaard  v.  St.  Paul  City  Ry.  Co., 
48  Minn.  232;  51  N.  W.  Rep.  Ill;  Chicago  City  Ry.  Co.  v.  Delcourt,  33 
HI.  App.  430;  Corlin  v.  West  End  St.  Ry.  Co.,  154  Mass.  197;  27  N.  E. 
Rep.  1000;  Central  Ry.  Co.  u.  Smith,  74  Md.  212;  21  Atl.  Rep.  706;  Ked- 
dington  v.  Philadelphia  Traction  Co.,  132  Pa.  St.  174;  19  Atl.  Rep.  28; 
Briggs  V.  Union  St.  Ry.  Co.,  148  Mass.  72;  19  N.  E.  Rep.  19);  but  not 
Avith  such  rigor  as  to  railway  trains. —  Citizens  St.  Ry.  Co.  v.  Spahr,  7 
Ind.  App.  23;  33  N.  E.  Rep.  446.  See  Central  Pass.  Ry.  Co.  v.  Rom; 
(Kentucky),  22  S.  W.  Rep.  745;  White  v.  Atlantic  Con.  St.  R.  Co., 
92  Ga.  494;  17  S.  E.  Rep.  672;  Murphy  v.  St.  Louis,  etc.,  R.  Co.,  43  Mo 
App.  342;  Schacherl  v.  St.  Paul  City  Ry.  Co.,  42  Minn.  42;  43  N.  W.  Rep 
837;  Valentine  v.  Broadway  &  S.  A.  R.  Co.,  14  Daly,  540;  4  N.  Y.  S.  Rep. 
481;  Stager  v.  Ridge-Ave.  Pass.  Ry.  Co.,  119  Pa.  St.  70;  12  Atl. 
Rep.  821. 

Standing  on  the  Platform  of  a  Car  —  Is  such  negligence  as  will 
defeat  an  action  by  the  passenger  for  injuries  received  in  consequena- 
(Alabama,  etc.,  R.  Co.  v.  Hawk,  72  Ala.  112;  Quinn  v.  Illinois  Cent.  R. 
Co.,  51  111.  495;  Camden,  etc.,  R.  Co.  v.  Hoosey,  99  Pa.  St.  492;  Hickey 
V.  Boston,  etc.,  R.  Co.,  14  Allen,  429;  McAunich  v.  Mississippi,  etc.,  K 
Co.,  20  la.  333 ;  Taylor  v.  Danville,  etc.,  R.  Co.,  10  Brad.  (111.)  311 ;  Smotb- 
erraan  v.  St.  Louis,  etc.,  Ry.  Co.,  29  Mo.  App,  265;  Torrey  «.  Boston  & 
A.  R.  Co.,  147  Mass.  412;  18  N.  E.  Rep.  212),  though  there  are  do 
vacant  seats  inside,  but  sufficient  standing  room. —  Quinn  u.  Illinois,  etc., 
R.  Co.,  51  111.  495;  Camden,  etc.,  R."  Co.  v.  Hoosey,  99  Pa.  St.  492;  Alkin 
V.  Frankford,  etc.,  R.  Co.,  142  Pa.  St.  47;  21  Atl.  Rep.  781.  Co}Ura, 
Willis  V.  Long  Island  R.  Co.,  34  N.  Y.  670.  In  another  New  York  case  it 
was  held  that  the  fact  that  a  passenger  failed  to  And  a  seat  and  having 
none  pointed  out  to  him  by  any  employe  took  a  position  on  the  platform 
of  the  car  where  other  passengers  were  riding  without  objection  from 
any  employe  and  was  thrown  from  the  car  by  a  sudden  lurch  caused  by 
turning  a  curve,  did  not  establish  contributory  negligence.— Werle  v. 
Loii-  Island  R.  Co.,  98  N.  Y.  650. 

But  standing  on  the  front  platform  of  a  street  car  is  not  negligence 


RAILWAY    tU.Ml'AMKS l•A^Sl:^OKUS.  377 

tractin*;:  to  carry  him,  to  eoe  tlmt  lio  \»  vnvv'wd  carefullv  us 
re<rards  the  other  conipauy  as  well  as  themsclvea.     On  the 

p«r»e  thoui^h  there  is  room  inside. — Ma<?uirc  v.  Middlesex  li.  Co.,  \ir> 
Masd.  3'M;  Burns  «.  HellefoiilaiDO  K.  Co.,  50  Mo.  13U;  Nolan  v.  Brook- 
lyu,  etc.,  11.  Co.,  87  N.  Y.  G3;  Sutherland  v.  Sutherland  L.  &  A.  I.  Co., 
87  la.  605;  54  N.  W.  Rep.  453;  Matz  v.  St.  Paul  City  Ry.  Co.,  52  Minn. 
159;  53  N.  W.  Rep.  1071;  Mukloon  v.  Seattle  City  Ry.  Co.,  7  Wash.  528; 
85  Pac.  Rep.  422;  Archer  v.  Ft.  Wayne  &  E.  Ry.  Co.,  87  Mich.  101 ;  49  N. 
W.  Rep.  488;  Upham  v.  Detroit  City  Ry.  Co.,  85  Mich.  12;  48  N.  W.  Rep. 
I'J'J;  Ilourney  r.  Brool<lyii  City  R.  Co.,  7  N.  Y.  S.  Rep.  t;02;  Marion  St, 
R.  Co.  V.  Shaffer,  'J  Ind.  App.  48(J;  3()  N.  E.  Rep.  8G1.  Contra,  Andrews 
V.  Capitol,  etc.,  R.  Co.,  2  Mackey,  137. 

It  is  not  negligence  per  se  to  ride  on  the  steps  of  the  front  platform  of 
a  crowded  street  car  (Bruno  v.  Brooklyn  City  R.  Co.,  26  N.  Y.  S.  Rep. 
607;  5  Misc.  Rep.  327;  Pray  v.  Omaha  Street,  Ry.  Co.,  (Nebraska),  G2  N. 
W.  Rep.  447;  Elliott  v.  Newport  St.  Ry.  Co.  (R.  I.),  28  Atl.  Rep. 
838;  but  see  Francisco  v.  Troy  «&  L.  R.  Co.,  78  Ilnn,  13;  29  N.  Y.  S.  Rep. 
247;  Willmott  v.  Corrigan  Con.  St.  Ry.  Co.,  100  Mo.  535;  IG  S.  W.  Rep. 
oOO),  with  the  assent  of  the  conductor  or  driver. —  The  German  Pu-^senger 
Ky.  Co.  V.  Walling,  97  Pa.  St.  55;  37  Am.  R^  p.  711;  Seymour  v.  Citizens 
l{y.  Co.,  114  Mo.  2G0;  21  S.  W.  Rep.  739.— Or  on  the  footboard,  Cogswell 
'•.  West  St.,  etc.,  Ry.  Co.,  5  Wash.  St.  4G;  31  Pac.  Rei).  411;  Topeka 
<':tyRy.  Co.  v.  Iliggs,  38  Kan.  375;  IG  Pac.  Rep.  6(;7;  City  Ry.  Co.  i'. 
l.ee,  50  N.  J.  L.  435;   14  Atl.  Rep.  883. 

One  riding  on  the  rear  platform  of  a  crowded  car,  and  struck  by  the 
pnle  of  the  following  car  was  held  not  guilty  of  contributory  negligence 
alihough  the  accident  could  not  have  happened  bad  he  not  been  in  that 
position.—  13lh  &  14th  Pass.  R.  Co.  v.  Boudron,  92  Pa.  St.  475;  37  Am. 
Rep.  707. 

A  passenger  went  to  the  front  platform  of  a  car  to  smoke.  The 
<iriver  told  him  to  go  to  the  rear  platform.  He  started  to  do  so,  but  as 
lie  was  getting  down,  the  driver  let  go  the  brake.  The  car  started  and  he 
was  injured.  It  was  held  that  these  facts  did  not  make  out  a  cause  of 
action.  —  Brown  v.  Chicago,  etc.,  R.  Co.,  49  Mich.  153. 

Where  one  was  injured  by  falling  from  the  front  platform  of  a  car 
while  in  motion  upon  which  he  occupied  a  sitting  position  against  the 
rules  of  the  company,  the  warning  of  the  driver  and  without  reasonable 
excuse,  he  was  held  not  entitled  to  recover.  —  Willis  r.  Lynn,  etc.,  R. 
Co  ,  129  Mass.  351. 

If  a  passenger  sit  on  the  driving  bar  of  a  street  car  even  at  the  driver's 
invitation,  if  there  is  room  inside,  and  is  injured,  ho  ranDOt  recover. — 
Doiiney  v.  llendrie,  4(5  Mich.  498. 

There  are  cases  In  which  it  is  held  not  negligence  In  itself  for  a 
passenger  to  stind  upon  the  platform  of  a  railroad  car.  —  Zemp  v.  Wil- 
mington, etc.,  R.  Co.,  9  Rich.  84;  Edgcrton  v.  N.  Y.,  etc.,  R.  Co.,  35 


378  MOKE    THAN    ORDINARY    CARE. 

other  hand,  they  cannot  be  expected  to  be  answerable  for 
the  negligence  of  the  other  company  over  whose  line,  car- 
Barb.  389;  Willis  v.  Long  Island,  etc.,  R.  Co.,  34  N.  Y.  670;  Inter- 
national &  G.  N.  R.  Co.  V.  Welsh  (Tex.  Civ.  App.),  24  S.  W.  Rep.  854; 
Bonuer  v.  Glenu,  79  Tex.  531;  15  S.  W.  Rep.  572;  Kansas  &  A.  V.  Ry.Co. 
V.  White,  G7  Fed.  Rep.  481;  3  Am.  Lawyer,  376,  377. 

When  the  train  is  moving  slovply.  —  Goodrich  v.  Penn.,  etc.,  R.  Co., 
29  Hun,  50. 

Or  to  pass  from  one  platform  to  another.  —  Loui^vilJe,  etc.,  R.  Co.  v. 
Kelly,  92  Ind.  371;  Cleveland,  etc.,  R.  Co.  o.  Manson,  30  Ohio  St.  451 : 
Ft.  Clark  St.  R.  R.  v.  Ebaugh,  49  III.  App.  582. 

When  acting  under  the  suggestion  of  the  conductor  Xld.),  but  not 
when  it  is  done  against  his  advice.  —  Ohio,  etc.,  R.  Co.  v.  Schiebe,  44 
111.  460. 

Projecting  Arm  from  Car  Window.  —  It  is  also  negligence  for  a 
pas^el.J;er  to  project  his  arm  from  a  car  window.  — Todd  v.  Old  Colony, 
etc.,  R.  Co.,  3  Allen,  18;  Pittsburgh,  etc.,  R.  Co.  v.  Andrews,  39  Md.  329; 
Louisville,  etc.,  R.  Co.  v.  Sickings,  5  Bush,  1;  Dun  v.  Seabord,  etc.,  R. 
Co.,  78  Va.  645;  Holbrook  v.  Ulica,  etc.,  R.  Co.,  12  N.  Y.  236;  Pitts- 
burgh, etc.,  R.  Co.  V.  McClurg,  56  Pa.  St.  294  (overruling  Laing  c- 
Colder,  8  Pa.  St.  479)  ;  Indianapolis,  etc.,  R.  Co.  v.  Rutherford,  29  Ind 
82;  Richmond  &  D.  R.  Co.  v.  Scott,  88  Va.  958;  14  S.  E.  Rep.  763;  Cur.! 
rico  V.  West  Va.  C.  &  P.  Ry.  Co.,  35  W.  Va.  .389;  14  S.  E.  Rep.  12;  But- 
ler V.  Pitt^burgh  &  B.  St.  Ry.  Co.,  139  Pa.  St.  195;  21  All.  Rep.  500; 
Georgia  Pac.  Ry.  Co.  v.  Underwood,  90  Ala.  49;  8  So.  Rep.  116;  Favre 
0.  Louisville  &  N.  R.  Co.,  91  Ky.  541;  16  S.  W.  Rep.  370. 

This  has  been  held  a  question  of  fact  for  the  jury  by  some  courts. — 
New  Orleans  &  C.  R.  Co.  v.  Schneider,  60  Fed.  Rep.  210;  8  C.  C.  A.  671; 
Quinn  v.  South  Carolina  Ry.  Co.,  29  S.  C.  381;  7  S.  E.  Rep.  614;  Dabl- 
berg  V.  Minneapolis  St.  Ry.  Co.,  32  Minn.  404;  Barton  v.  St.  Louis,  etc., 
R.  Co.,  52  Mo.  253;  Chicago,  etc.,  R.  Co.  v.  Pondrora,  51  111.  333;  Ger- 
mantown  Pass.  Ry.  Co.  v.  Brophy,  105  Pa.  St.  38.  (In  this  case  the 
passenger  was  ^e^ting  his  arm  on  the  sill  within  the  car  window,  and  it 
was  thrown  out  and  injured  by  a  jolt.)  —  Spencer  v.  Milwaukee,  etc.,  R. 
Co.,  17  Wis.  487;  Farlow  v.  Kelly,  108  U.  S.  288.  (Similar  to  Germ. 
I'a^s.  Ry.  Co.  v-  Brophy,  supra.) 

.\u(i  in  some  cases  the  company  is  held  responsible  for  injuries  of  this 
kind  unless  it  places  bars  in  its  windows  to  prevent  passengers  from 
thrusting  out  their  arms.—  Spencer  v.  Milwaukee,  etc.,  R.  Co.,  17  Wis. 
487;  New  Jersey  R.  Co.  v.  Kennard,  21  Pa.  St.  203;  Chicago,  etc.,  K. 
Co.  V.  Pondrom,  51  111.  333.  But  this  is  not  now  the  law  (Dun  v.  Sea- 
bord. etc.,  R.  Co.,  78  Va.  645;  Railroad  Co.  v.  Rutherford,  S.  C.  Ind.,  7 
Am..  Law  Reg.  fx.  s  )  476;  Missimer  v.  Railroad  Co.,  Phil.  Com.  Pleas, 
42  Lej:.  Intel.  405).     Sie  ante,  p.  52. 

Allghtinsr  Irom  Trains.—  It  is  the  duty  of  a  railroad  company  to  f^f  p 


RAILWAY    COMPANIES rASSEXOEKS.  37fl 

[301]  riiij^cs  and  servants,  the}' have,  perhaps,  no  control. 
It  seems  that  their  tluly  really  is  to  do  their  hest  to  be  careful 

at  a  station  to  enable  passenscrs  to  alight  In  safety.  But  a  passcngor  is 
not  justiilcil  in  allglitln^  from  a  train  wliile  it  is  in  motion.  Sucli  con- 
dact  Is  nejillgence  per  sr  (Strains  v.  Kansas,  etc.,  R.  Co.,  75  Mo.  180; 
Damout  V.  N.  O.,  etc.,  U.  Co.,  9  La.  Ann.  441 ;  Penu.  K.  Co.  v.  Aspell,  '2:i 
Pi.  St.  147;  Jeffersonville,  etc.,  R.  Co.  v.  Hemiricks,  2G  Ind.  258;  Kelly 
r.  Hannibal,  etc.,  R.  Co.,  70  Mo.  604.  See  Brown  v.  Barne>',  151  Pa.  St. 
562;  25  Atl.  Rep.  144;  31  W.  N.  C.  17'J;  Hughlettu.  Louisville  &  N.  R. 
Co.  (Kentucky),  22  S.  W.  Rep.  551;  Louisville  &  N.  R.  Co.  r.  Johnson, 
44  111.  App.  5t;;  Brown  v.  Chicago,  etc.,  R.  Co.,  80  Wis.  162;  4;»  N.  \V. 
Rep.  807;  Kilpatrick  p.  Pennsylvania  R.  Co.,  140  Pa.  St.  502;  21  Atl.  R«?p. 
408;  27  W.  N.  C.  484;  Cincinnati,  L,  St.  L.  &  C.  R.  Co.  r.  Dufrain,  iJC  111. 
App.  352;  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Tankersly,  54  Ark.  25;  14  S.  W. 
Rep.  1091);  iMcLareu  v.  Atlanta  &  W.  P.  R.  Co.,  85  Ga.  504;  11  S.  E.  Rep. 
840;  Walker  v.  Vicksburg,  S.  &  P.  R.  Co., 41  La.  Ann.  765;  6  So.  Rep.  lUC; 
Whelan  v.  Georgia,  etc.,  R.  Co.,  84  Ga.  506;  10  S.  E.  Rep.  1091;  Jarrett 
••  Atlanta  v.  W.  P.  R.  Co.,  83  Ga.  347;  9  S.  E.  Rep.  681 ;  Savannah,  F.  & 
W.  R.  Co.  V.  Watts,  82  Ga.  229;  9  S.  E.  Rep.  12!t;  Wat.sou  r.  Georgia 
Pac.  Ry.  Co.,  81  Ga.  476;  7  S.  E.  Rep.  854;  Dwyer  v.  New  York,  etc., 
Ry.  Co.,  48  N.  J.  L.  373;  7  Atl.  Rep.  417;  see  also,  ante,  p.  53),  although 
the  train  does  not  stop  at  the  station  the  passenger  is  destined  for,  and 
though  he  takes  that  course  to  save  others  distress  on  account  of  his 
ab.'iince. —  Lake  Shore,  etc.,  Ry.  Co.  v.  Bangs,  47  Mich.  470.  See  Atlanta 
A  W.  P.  R.  Co.  V.  Dickinson,  80  Ga.  455;   15  S.  E.  Rep.  634. 

On  the  other  hand  it  is  held  not  negligence  per  se  for  a  passenger  to 
jiin)i>from  a  moving  train.  — Lloyd  v.  Hannibal,  etc  ,  R.  Co.,  53  Mo.  509; 
Hiooks  r.  Boston,  etc.,  R.  Co.,  135  Mass.  21;  Penn.  R.  Co.  v.  Kilgore,  32 
Pa.  St.  292;  Galveston,  etc.,  R.  Cj.  v.  Smith,  59  Tex.  406;  Little  Rock  & 
Ft.  S.  Ry.  Co.  V.  Atkins,  46  Ark.  4'-'3;  Duncan  v.  Wyatt  Park  Ry.  Co.,  48 
.Mo.  App.  659;  Richmond  u.  Quincy,  etc.,  Ry.  Co.,  49  Mo.  App.  104; 
Louisville  &  N.  R.  Co.  v.  Crunk,  119  Ind.  542;  21  N.  E.  Rep.  31.  See 
ante,  p.  63. 

When  it  stops  for  a  moment,  or  moves  so  slowly  as  to  be  almost  im- 
perceptible.—Clotworthy  V.  The  Hannibal,  etc.,  R.  Co.,  80  Mo.  220. 

When  the  passenger  does  it  to  avoid  being  carried  past  his  destina- 
tion.- Central,  etc.,  R.  Co.  v.  Letcher,  69  Ala.  106;  Damont  v.  Now  Or- 
leans, etc.,  R.  Co.,  9  La.  Ann.  414;  Jewell  v.  Chicago,  etc.,  R.  Co.,  54 
Wis.  610;  Smith,  etc.,  R.  R.  Co.  v.  Singleton,  66  Ga.  252;  Dougherty  r. 
Chicago,  etc.,  R.  Co.,  86  111.  467;  Houston,  etc.,  R.  Co.  r.  Leslie,  57  Tex. 
83;  Richmond,  etc.,  R.  Co.  v.  Morris,  31  Gratt.  200;  Cumberland,  etc.,  R. 
Co.  V.  Maugans,  61  Md.  53;  Lambeth  v.  North,  etc.,  R.  Co.,  66  N.  C.  494; 
Mitchell  r.  Chicago,  etc.,  R.  Co.,  51  Mich.  236;  Carr  v.  Eel  River  &  E. 
K.  Co.,  98  Cal.  366;  33  Pac.  Rep.  213. 

Especially  when  the  act  is  done  under  the  suggestions  or  instructions 


380  MOKE  THAN  OKDIXAUY  CARE. 

[302]  as  regards  themselves  and  as  regards  the  other 
company,  but  that  they  are  not  answerable  for  the  negli- 

of  the  company's  servants. —  Lambeth  v.  North,  etc.,  R.  Co.,  66  N.  C. 
499;  St.  Loui.s,  etc.,  R.  Co.  v.  Cautrell,  37  Ark.  519;  Filers.  New  York, 
etc.,  R.  Co.,  49  N.  Y.  47;  I.  &  G.  N.  Ry.  Co.  v.  Hassell,  62  Tex.  25G; 
Bucher  v.  New  York  Cent,,  etc.,  R.  Co.,  98  N.  Y.  128;  McCaslin  v.  Lake 
Shore  &  M.  S.  Ry.  Co.,  93  Mich.  553;  53  N.  W.  Rep.  724;  Texas  &  N.  0. 
Ry.  Co.  V.  Bingham,  2  Tex.  Civ.  App.  278;  21  S.  W.  Rep.  561 ;  Galloway 
V.  Chicago,  etc.,  Ry.  Co .,  87  la.  458;  54  N.  W.  Rep.  447;  Eddy  v.  Wallace, 
49  Fed.  Rep.  801;  Reary  v.  Louisville,  etc.,  Ry.  Co.,  40  La.  Ann.  32;  3 
So.  Rep.  390;  Cincinnati,  H.  &  I.  R.  Co.  v.  Carper,  112  Ind.  26;  13  N.  E. 
Rep.  122;  14  N.  E.  Rep.  352;  St.  Louis,  L  M.  &  S.  Ry.  Co.  v.  Person,  4!) 
Ark.  182;  4  S.  W.  Rep.  755;  Burgin  v.  Richmond  &  D.  R.  Co.,  116  N.  C. 
673;  20  S.  E.  Rep.  473. 

Or  clone  to  avoid  impending  danger. —  Iron  Ry.  Co.  v.  Mowrey,  36 
Ohio  St.  418;  Wilson  v.  Northern  Pacific  R.  Co.,  26  Minn.  278. 

Such  questions  are  usually  for  the  jury  to  determine. —  Kentucky  & 
I.  Bridge  Co.  ■?;.  McKinney,  9  Ind.  App.  213;  36  N.  E.  Rep.  448;  Onder- 
douk  V.  New  York  &  S.  B.  Ry.  Co.,  74  Huu,  42;  26  N.  Y.  S.  Rep.  310; 
Jones  V.  Chicago,  etc.,  R.  Co.,  42  Minn.  183;  43  N.  W.  Rep.  114;  New 
York,  S.  E.  &  W.  R.Co.  v.  Euches,  127  Pa.  St.  316 ;  17  Atl.  Rep.  901 ;  24  W. 
N.  C.  261;  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Holsapple  (lud.  App.),  38 
N.  E.  Rep.  1107;  Raben  u.  Central  la.  Ry.  Co.,  73  la.  579;  34  N.  W.  Rep. 
(121;  Baltimore  &  O.  R.  Co.  v.  Meyers,  62  Fed.  Rep.  367. 

In  Cumberland  v.  Mangans,  supra,  a  young  man  with  a  valise  in  his 
right  hand  and  a  basket  of  provisions  on  his  left  arm,  attempted  in 
broad  daylight  to  leave  the  train  while  it  was  moving  slowly,  the  dis- 
tance from  the  lower  step  of  the  car  to  the  platform  being  only  eighteen 
inches,  and  in  doing  so  was  injured.  It  was  held  that  he  was  not  neces- 
sarily negligent. 

In  St.  Louis,  etc.,  R.  Co.  v.  Cantrell,  supra,  the  conductor  of  atrain  went 
to  plaintiff  passenger,  shook  him  and  told  him  that  was  his  station,  to 
hurry  up  and  get  off.  It  was  about  ten  o'clock  at  night,  plaintiff 
stepped  out  on  the  platform  of  the  car,  and  in  attempting  to  step  on  the 
platform  of  the  depot,  fell  forward  and  was  injured,  the  train  baviiiL' 
overshot  the  platform,  which  was  seven  feet  above  the  ground.  The 
plaintiff  was  held  not  guilty  of  contributory  negligence. 

(It  has  been  held  that  a  railroad  company  is  not  bound  to  wake  a 
drowsy  (Nunn  v.  The  Georgia  R.  Co.,  71  Ga.  710),  or  sick  passen- 
ger.— Sevier  v.  Vlcksburg,  etc.,  R.  Co.,  61  Miss.  8.) 

But  where  a  railroad  train  did  not  stop  at  a  station  a  reasonable 
length  of  time  to  allow  passengers  to  alight,  and  a  passenger  undertook 
in  spite  of  warnings  to  get  off  after  the  train  had  started,  and  was  injured, 
it  was  held  tliat  she  wms  guilty  of  contributory  negligence.— Jewell  r. 
Chicago,  etc.,  Ry.  Co..  54  Wis,  610-   41  Am.  Rep.  63 


KAll.WAY    COilPANlES lASSKNOKKS.  381 

gi'iit  acts  of     [303]     the  other   company    again-;t    which 
ihoy  could  not  guard,  any  more  than  they  arc  lor  tlie  negli- 

Aod  where  oue  Incumbered  with  band  bag  In  a  dark  night,  btepped 
from  a  train  inovinsj  from  six  to  eight  miles  an  hour  before  It  reached  tiie 
platform,  and  a<;aiust  the  advice  of  the  conductor,  it  was  held  that  he 
could  uot  recover  for  injuries  received. —  South,  etc.,  K.  Co.  r. 
Schaufler,  76  Ala.  130. 

And  where  the  train  stops  at  a  place  other  than  a  station,  as  on 
approaching  the  crossing  of  another  railroad,  or  at  a  water  tank 
(Mitchell  V.  Chicago,  etc.,  R.  Co.,  51  Mich.  23G;  Illinois,  etc.,  R.  Co. 
r.  Green,  81  111.  19),  the  passenger  will  be  guilty  of  negligence  in  alight- 
ing. But  if  he  is  advised  by  the  company's  servant  to  alight  and,  acting 
under  this  advice,  is  injured,  he  may  recover. —  Memphis,  etc.,  R.  Co.  r. 
Whltfleld,  44  Miss,  4G(i;  Wood  v.  Lake  Shore,  etc.,  R.  Co.,  49  Mich. 
370;  Brown  p.  Chicago,  etc.,  R.  Co.,  54  Wis.  342. 

The  passenger  is  not  justilled  in  alighting  at  the  calling  out  of  the 
station  when  the  train  is  moving  (Pabst  v.  Baltimore,  etc.,  R.  Co.,  2 
MacArthur,  42)  ;  that  is  only  an  intimation  that  the  train  will  stop 
at  the  next  station,  but  he  may  infer  that  it  is  an  invitation  to  alight 
when  tlie  train  has  come  to  a  stop. —  Milliman  v.  N.  Y.,  etc.,  R.  Co.,  OG 
N.  Y.  642. 

A  train  approached  a  crossing  and  stopped  as  required  by  law.  The 
name  of  the  station  had  just  l)eeu  called  and  a  woman  passenger  hurried 
to  the  door  to  alight.  The  traiu  was  not  at  the  proper  point  for  landing 
passengers,  and  as  she  climijed  down  it  started  to  go  to  the  depot.  She 
fell  and  was  injured.  It  was  held  the  company  was  not  liable. —  Mitchell 
r.  Chicago,  etc.,  R.  Co.,  51  Mich.  23G. 

And  where  a  passenger  left  the  cars  after  the  conductor  had  called  out 
the  name  of  the  station,  and  the  train  had  passed  the  station,  and  bad 
almost  stopped,  and  while  crossing  to  the  station  he  was  killed  by  a 
locomotive  which  he  might  have  seen,  had  he  looked,  it  was  held  that  no 
recovery  could  be  had,  the  court  saying,  "  by  leaving  the  train  while  in 
motion  he  ceased  to  be  a  passenger  and  to  have  the  rluhls  of  a  passen- 
ger as  completely,  though  tlie  train  w;is  moving  slowly  and  was  near  the 
station,  as  if  he  liad  left  it  while  moving  at  full  speed  between  stations." — 
Commonwealth  r.  Boston,  etc.,  R.  Co.,  12'.»  Mass.  500. 

Rldin?  in  Baggage  Car,  on  Engine,  etc. —  A  passenger  riding  in  a 
baggage  car  In  violation  of  the  known  rules  of  the  company  cannot 
recover  for  injuries  received  in  consequence  of  such  violation. —  Penn- 
sylvania R.  Co.  w.  Lanjidon,  92  Pa.  St.  21;  37  Am.  Rep.  651;  Honston, 
etc.,  R.  Co.  V.  Clemnions,  55  Tex.  88;  Ilickey  tJ.  Boston,  etc.,  R.  Co.,  14 
Allen,  429;  Kentucky  Central  R.  Co.  r.  Thoma-,  79  Ky.  160. 

It  has  been  held  not  negligence  for  a  passenger  to  ride  in  the  baggage 
car  by  permission  of  tlie  conductor. —  O'Donndl  r.  .\lltgheny,  etc.,  R. 
Co.,  50  Pa.  St.  490;  Carroll  v.  N.  Y.,  etc.,  R.  Co.,  1  Duer,  071;  Jacobs  r. 


382  MORE   THAN   ORDINARY    CARE. 

gentactsof  [304]  strangers  (y).  The  plaintiff  traveled 
with  a  ticket  issued  by  the  London,  Chatham  and  Dover 

(y)  Blake  v.  Gt.  W.  Ry.  Co.,  7  H.  &  N.  train  of   another  company) ;  Birkett  r. 

987;  31  L.  J.  Ex.  346  (locomotive  engine  Whitehaven  Junction  Ry.  Co.,  4  H.  &  N. 

left  on  line  by  other  company) ;  Thomas  730;  38  L.  J.  Ex.  348  (defect  in  switch  in 

r.  Rhymney  Ry.  Co.,  L.  R.  6  Q.  B.  266;  Maryport  Ry.) ;  Baxton  v.  N.  E.  Ry .  Co., 

40  L.  J.  Q.  B.  89  (train  in  the  way  of  de-  L.  R.  3  Q.  549;  37  L.  J.  Q.  B.  258  (cattle 

fendants'  train  on  the  line);  Wright  v.  on  line  of  another  company) ;  Foulkesr. 

Midland  Ry.  Co.,  42  L.  J.  Ex.  89;  L.  R.  8  Met.  Ry.  Co.,  supra. 
Ex.  138  (train  of   Midland  run  into  by 

St.  Paul,  etc.,  K.  Co.,  20  Minn.  125;  New  York,  L,  E.  &  W.  K.  Co.  v. 
Ball,  55  N.  J.  L.  283;  21  Atl.  Rep.  1052;  Jones  v.  Chicago,  etc.,  Ky.  Co., 
43  Minn.  279;  45  N.  W.  Rep.  444. 

The  better  rule  is  that  the  permission  of  the  conductor  is  no  excuse. — 
Pennsylvania  R.  Co.  f.  Langdon,  92  Pa.  St.  21;  Hickey  v.  Boston,  etc., 
R.  Co.,  14  Allen,  429;  Houston,  etc.,  R.  Co.  v.  Clemmons,  55  Tex.  88. 
So  as  to  riding  in  express  car. —  Florida  Southern  Ry.  Co.  v.  Hirst,  30 
Fla.  1;  11  So.  Rep.  506. 

**  We  are  unable  to  see  how  a  conductor,"  said  the  court  in  Penn- 
sylvania R.  Co.  V.  Langdon,  supra,  "  in  violation  of  a  known  rule  of  the 
company  can  license  a  man  to  occupy  a  place  of  danger  so  as  to  make 
the  Company  responsible."  (In  Webster  v.  Rome,  etc.,  R.  Co.,  40  Hun, 
101,  the  question  of  contributory  negligence  was  held  "  properly  left  to 
the  jury.") 

So  too  a  passenger  riding  on  a  locomotive  in  violation  of  the  known 
rules  of  the  company  cannot  recover  for  injuries  so  received. —  Robert- 
son V.  N.  Y.,  etc.,  R.  Co.,  22  Barb.  91. 

Though  with  the  consent  of  the  one  in  charge  of  the  train. —  Railroad 
Co.  V.  Jones,  95  U.  S.  439;  Texas  &  P.  Ry.  Co.  v.  Boyd,  6  Tex.  Civ.  App. 
205;  24  S.  W.  Rep.  1086;  McGucken  v.  Western  N.  Y.  &  P.  R.  Co.,  77 
Hun,  69;  28  N.  Y.  S.  Rep.  298. 

But  where  a  negro,  without  the  knowledge  of  the  conductor,  was  per- 
mitted by  the  fireman  on  payment  of  fifty  cents  to  ride  upon  the  pilot  of 
the  engine  and  was  injured,  it  was  held  that  he  could  recover. —  Rucker 
V.  Missouri,  etc.,  R.  Co.,  61  Tex.  499. 

This  is  a  case,  however,  of  doubtful  authority,  since  the  fireman  was 
not  acting  within  the  scope  of  his  employment. 

In  Lake  Shore  &  M.  S.  R.  Co.  v.  Brown  (123  111.  162;  14  N.  E.  Rep. 
197)  it  was  held,  that  one  entitled  to  transportation  could  recover  for  an 
injury  resulting  from  his  riding  on  the  footboard  of  the  engine  at  the 
direction  of  the  engineer. 

Where  a  cattle  drover  was  injured  while  riding  on  an  engine  with  the 
consent  of  the  engineer,  but  contrary  to  the  rules  of  the  company,  it  was 
left  to  the  jury  to  determine  whether  the  company  had  by  its  conduct 
h«'ld  out  its  employes  to  the  plaintifE  as  authorized  to  consent  to  his  being 


KAILWAV    rOMPANIKS PA8SEN(H:I{S.  388 

Railway  Compimy  upon  [305]  the  defendant's  line,  over 
which  the  L.  C.  &  D.  Co.  had  running  i)owers.     IIo  was 

carried  on  the  traiu  with  his  cattle. —  Waterbury  r.  New  York  Central, 
etc.,  U.  Co.,  21  Blatchf.  314. 

The  rule  Is  laid  down  in  Thompson  on  Carriers  of  Passengers,  265. 
"  There  are  certain  pDrtions  of  every  carrier's  vehicles  which  are  so  obvi- 
ously dangerous  for  a  passenger  to  occupy,  that  the  presence  of  a  passeuj^er 
there  will  constitute  nefiliueuce  as  a  matter  of  law,  and  preclude  him 
from  claiming  damages  while  in  that  position.  For  instance,  the  engine 
would  seem  to  be  a  place  designed  exclusively  fur  the  employts  of  a 
railroad  company,  even  in  the  absence  of  regulations  forbidding  the 
presence  of  passengers  thereon." —  Doggett  v.  Illinois,  etc.,  K.  Co.,  3+ 
la.  284;  Railroad  Co.  r.  Jones,  t)5  U.  S.  4.19.  See  Carroll  r.  Interstate  It. 
T.  Co.,  107  Mo.  653;  17  S.  W.  Rep.  88I». 

The  same  degree  of  care  is  required  in  the  operation  of  a  freight  train 
carrying  passengers  as  in  the  operation  of  a  passeftger  train. —  Interna- 
tional &  G.  W.  R.  Co.  V.  Irvine,  64  Tex.  529;  Mexican  Cent.  Ry.  Co.  r. 
Uuricella  (Tex.  Civ.  App.);  26  S.  W.  Rep.  301;  Pennsylvania  Co.  r. 
Newmeyer,  129  Ind.  401  ;  28  N.  E.  Rep.  860.  Cvnlra  Reber  r.  Bond,  38 
Fed.  Rep.  822.  In  Illinois  Cent.  R.  Co.  v.  Axley  (47  111.  App.  307),  the 
distinction  Is  made  that  the  passenger  on  a  freight  train  assumes  a 
greater  risk. 

Riding  upon  freight  trains  in  violation  of  the  company's  rules  is  such 
negligence  on  the  part  of  the  plaintiff  as  will  preclude  a  recovery  for 
injuries  received. —  Sherman  v.  Hannibal,  etc.,  R.  Co.,  72  Mo.  62;  Hous- 
ton, etc.,  R.  Co.  V.  Moore,  49  Tex.  31.  And  a  conductor  cannot  relax 
the  company's  rules.— Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Campbell,  76  Tex.  174; 
18  S.  W.  Rep.  19. 

A  person  having  cattle  on  the  train  who,  with  ample  time  to  do  so. 
failed  to  get  al)oard  the  caltoose  but  boarded  a  freight  car  and  was  in- 
jured while  riding  thereon,  was  held  guilty  of  contributory  negllgenct  , 
though  defendant  negligently  failed  to  bring  the  caboose  within  a  rta- 
sonable  distance  of  the  depot. —  Player  v.  Burlington,  etc.,  Ry.  Co.,  62 
la.  723.  See  Richmond  &  D.  R.  Co.  v.  Plckleslmer,  89  Va.  389;  16  S.  E. 
Rep.  245;  Florida  Ry.  &  Nav.  Co.  r.  Webster,  25  Fla.  394;  5  So.  Rep. 
714.  But  it  would  not  be  negligence  per  se  If  plaintiff  had  not  time  to 
get  aboard  the  caboose.— Chicago,  M.  &  St.  P.  Ry.  v.  Carpenter,  56  Fed. 
Rep.  451;  5  C.  C.  A.  651. 

But  when  the  company's  servants  undertake  to  carry  passengers  in 
fiuch  trains  and  a  passenger  is  injured  while  riding  therein,  though  it  is 
contrary  to  the  rules  of  the  company  to  allow  passengers  to  ride  there, 
the  company  will  be  liable.— Dunn  v.  Grand  Trunk  R.  Co.,  58  Me.  187; 
Creed  r.  Pennsylvania,  etc.,  R.  Co.,  86  Pa.  St.  139;  Whitehead  r.  St. 
Louis,  etc.,  Ry.  Co.  (Mo.),  US.   W.  Rep.  751. 

Where  plaintiff's  Intestate,  who,  in  pursuance  of  a  contract  for  the 


384  MORE  THAN   ORDINARY   CARE. 

injured  through  the  negligence  [306]  of  the  defendant's 
porter  in  shutting  a  carriage  door  at  a  station  belonging  to 

carriage  of  horses,  and  in  accordance  with  the  custom  in  such  cases,  was 
riding  in  the  same  car  with  the  horses  in  order  to  care  for  them,  was 
killed  in  a  collision  caused  by  defendant's  gross  negligence,  it  was  held 
that  be  would  not,  as  an  ordinary  passenger  who  had  voluntarily  placed 
himself  in  a  dangerous  position,  be  deemed  to  have  been  guilty  of  con- 
tributory negligence. —  London,  Adm'x.  v.  Chicago,  etc.,  E.  Co.,  S.  C. 
Wis.,  Sept.  22,  1885.  So  where  one  in  charge  of  a  show  car  rides  thereon 
in  the  performance  of  his  duty. — Blake  v.  Burlington,  etc.,  Ry.  Co., 
Iowa),  66  N.  W.  Rep.  405. 

And  when  a  passenger  rides  upon  the  top  of  a  freight  car,  he  cannot 
recover  for  injuries  received  (McCorkle  v.  Chicago,  etc.,  R.  Co.,  61  la. 
555,  or  the  cupola  of  a  caboose  (Tuley  v.  Chicago,  B.  &  Q.  R.  Co.,  41  Mo. 
App.  432),  though  he  acted  under  the  directions  of  the  station  agent 
(Little  Rock,  etc.,  R.  Co.  v.  Miles,  40  Ark.  298),  or  a  conductor. —  Atchi- 
son, T.  &  S.  F.  R.  Co.  V.  Lindley,  42  Kan.  714;  22  Pac.  Rep.  703. 

But  in  another  case  it  was  held  that  he  could  recover  when  he  placed 
himself  in  that  position  by  the  direction  of  the  conductor. —  Indianapolis, 
etc.,  R.  Co.  V.  Horst,  93  U.  S.  291. 

Injuries  to  Free  Passengers. —  The  fact  that  one  who  becomes  a 
passenger  is  carried  gratuitously  does  not  relieve  the  company  of  the 
obligations  of  a  common  carrier.  It  must  exercise  the  same  care  and 
attention  in  the  transportation  of  gratuitous  passengers  as  of  those  who 
have  paid  their  fares,  and  is  liable  to  the  same  extent  for  negligence.— 
Todd  V.  Old  Colony,  etc.,  R.  Co.,  3  Allen,  18;  Steamboat  New  World  v. 
King,  16  How.  469;  Little  Rock,  etc.,  R.  Co.  v.  Miles,  40  Ark.  298;  Wilton 
V.  Middlesex  R.  Co.,  107  Mass.  108;  Pennsylvania  R.  Co.  v.  Henderson, 
51  Pa.  St.  316;  Jacobus  v.  St.  Paul,  etc.,  R.  Co.,  20  Minn.  125;  Blair 
V.  Erie  Ry.  Co.,  66  N.  Y.  313. 

The  relation  of  carrier  and  passenger  does  not  necessarily  arise  on* 
of  the  payment  of  fare.—  Cogswell  v.  West  St.  &  N.  E.  E.  Ry.  Co.,  6 
Wash.  St.  40;  31  Pac.  Rep.  411;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Snead. 
4  T<x.  Civ.  App.  31 ;  23  S.  W.  Rep.  277.  A  drover  attending  his  cattle  on 
a  freight  train  Is  a  passenger  though  carried  gratuitously. — Pennsylvania 
U.  Co.  V.  Henderson,  51  Pa.  St.  316;  New  York  Central  R.  Co.  v.  Lock- 
wood,  17  Wall.  357;  Indianapolis,  etc.,  R.  Co.  v.  Horst,  93  U.  S.  291; 
fi'milh  V.  N.  Y.,  etc.,  R.  Co.,  24  N.  Y.  222;  Graham  v.  Pacific  R.  Co.,  66 
Mo.  536;  Flinn  ».  Phil.,  etc.,  R.  Co.,  1  Houst.  469;  Cleveland,  etc.,  R. 
Co.  V.  Curran,  19  Ohio  St.  1;  Ohio,  etc.,  R.  Co.  v.  Selby,  47  Ind.  471; 
Martini-.  Bi'.ltimore,  etc.,  R.  Co.,  14  W.  Va.  150;  Little  Rock,  etc.,  R. 
Co.  V.  Miles,  40  Ark.  298;  Tex.  &  P.  Ry.  Co.  v.  Garcia,  62  Tex.  285; 
New  Orleans  &  N.  E.  R.  Co.  v.  Thomas,  60  Fed.  Rep.  379;  9  C.  C.  A.  29; 
Pitcher  v.  Lake  Shore  &.  M.  S.  Ry.  Co.,  61  Hun,  623;  16  N.  Y.  S.  Rep. 
62;  Porter  v.  New  York,  etc.,  R.  Co.  59  Hun,  177;  13  N.  Y.  S.  Rep.  691; 


RAILWAY    COMPANIES FREE   PASSENGERS.  385 

the  defendant,  hut  on  a  platform  [307]  cxclunivcly 
allotted    to    the    I..    C.     &    D.    Co.      It   was   held   that    the 

Louisville,  N.  A.  &  C.  Ry.  Co,  v.  Faylor,  126  Ind.  126;  25  N.  E.  Kep. 
8C9;  Orcutt  r.  Northern  Pac.  R.  Co.,  45  Minn.  3(58 ;  47  N.  \V.  Rep.  1008; 
LaW!>on  r.  Chicago,  etc.,  Ry.  Co.,  C4  Wis.  447;   54  Am.  Rep.  t;34. 

So  are  express  a^L-nts. —  Yeonians  r.  Contra  Costa,  etc.,  Nav.  Co.,  44 
Cal.  71;  Kentucky  Central  R.  Co.  v.  Thomas,  71)  Ky.  KIO;  Blair  r.  Erie 
Ry.  Co  ,  M  N.  Y.  313;  Hammond  v.  N.  E.  R.  Co.,  G  Rich.  L.  130;  Kenney 
c.  New  York,  etc.,  R.  Co.,  125  Rep.  42*2;  2(!  N.  E.  Rep.C2r,;  Brewer  r.New 
York,  etc.,  R.  Co.,  124  N.  Y.  59;  23  N.  E.  Rep.  334,  ainmiing  45  Hun,  595. 

And  postal  clerks  or  mail  agents. —  Seybolt  v.  New  York,  etc.,  R.  Co., 
94  N.  Y.  5C2;  47  Am.  Rep.  75;  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v. 
Ketcbam  (Indiana),  33  N.  E.  Rep.  IIG;  Mellor  r.  Missouri  Pacillc  Ry. 
Co.,  105  M...  455;  16  S.  W.  Rep.  849;  Gulf  C.  &  S.  F.  Ry.  Co.  v.  W'lLson, 
79  Tex.  371  ;  15  S.  W .  Rep.  280;  Baltimore  &  O.  R.  Co.  v.  State,  72  Md. 
36-  18  Atl.  Rep.  1107.  Contra,  Pennsylvania  R.  Co.  v.  Price,  90  Pa.  St. 
266  (by  statute!) . 

Towards  such  persons  the  oi)ligations  of  the  carrier  is  the  same  as 
towards  regular  passengers  who  have  paid  their  fare.  And  though  the 
ticket  or  free  pass  upon  which  they  travel  over  the  road  provides  that  the 
owner  shall  assume  all  risks  of  injuries  growing  out  of  the  company's 
nesHgence,  the  carrier  is  nevertheless  liable  therefor. —  Railroad  Co.  r. 
Lockwood,  17  Wall.  357;  Pennsylvania  R.  Co.  v.  Henderson,  51  Pa. 
St.  315;  Bryant'.  Missouri  Pac.  R.  Co.,  32  Mo.  App.  228;  Hopes  r. 
Chicago,  etc.,  Ry.  Co.,  29  Fed.  Rep.  703;  Prince  v.  International  &  G. 
N.  R.  Co.,  04  Tex.  144.  See  30  C  L.  J.  397,  note;  29  Am.  Law  Reg.  (n. 
8.)  391,  note;  and  cases  cited  above. 

This  Is  not  the  rule,  however,  in  New  York  with  reference  to  injuries 
to  persons  or  damage  to  goods,  contracts  exempting  the  carrier  from 
liability  for  negligence  in  that  State  being  upheld.— Canflcld  v.  Balti- 
more, etc.,  R.  Co.,  93  N.  Y,  532;  45  Am.  Rep.  208;  Mynard  r.  Syracuse, 
etc.,  R.  Co.,  71  N.  Y.  183;  Wells  v.  New  York  Central,  etc.,  R.  Co.,  24 
N.  Y.  181.  So  In  Washington.—  Muldoon  v.  Seattle  City  Ry.  Co.,  7  Wash. 
St.  628;  38  Pac.  Rep.  995. 

Nor  is  it  the  rule  when  the  tickets  or  passes  are  truly  gratuitous,  it 
! being  held  in  such  cases  that  the  carrier  may  provide  for  exemption  from 
negligence.— Kinney  v.  Central,  etc.,  R.  Co.,  34  N.  J.  L.  513;  Wells  f. 
New  York  Central,  etc.,  R.  Co.  24  N.  Y.  181;  Indiana  Central  R.  Co.  r. 
Mundy,  21  Ind.  48;  Quimby  v.  Boston  &  M.  R.  Co.,  150  Mass.  365;  23  N. 
K  Rep.  205;  Camden  &  A.  R.  Co.  v.  Bausch.  (Pa.),  7  Atl.  Rep.  731. 
Illinois  Central  R.  Co.  ».  Reed,  37  111.  484  (a  distinction  was  taken  In 
this  case  between  gross  negligence  amounting  to  willfulness  and  mere 
negligence,  and  it  was  held  that  the  company  coul<l  provide  for  exemp- 
tion from  liability  for  the  latter  but  not  for  the  former:  8.  p.,  Chicago, 
B.  &  N.  R.  Co.  V.  Hawk,  30  111.  App.  327). 

25 


386  MORE    THAX    ORDINARY    CARE. 

defendants  were  liable  for  the  negligence  of  their     [308] 
porter  (z).     Baggallay,  L.  J.,  said:    "  In  respect  of  that 

(c)  Self  V.  L.  B.  &  S.  C.  Ry.  Co.,  42  L.  T.  N.  S.  179;  [ante,  p.  301]. 

This  doctrine  was  announced  in  a  comparatively  recent  case. —  Gris- 
wold  r.*«.  Y.  &  N.  E.  R.  Co.,  53  Conn.  371;  25  Am.  Law  Reg.  196. 

The  facts  were,  that  plaintiff's  intestate,  who  was  employed  at  de- 
fendant's station  by  a  restaurant  keeper  to  sell  refreshments  on  the  train, 
and  was  furnished  with  a  free  pass  on  the  road  for  that  purpose,  was 
killed  by  a  collision  while  traveling  on  defendant's  train  for  his  own 
accommodation,  and  not  for  the  purpose  of  his  business.  The  free  pass 
provided  that  the  person  accepting  it  "  assumed  all  risk  of  accident,  and 
expressly  stipulated  that  the  company  should  not  be  liable  under  any  cir- 
cumstances, whether  of  negligence  of  their  agents  or  otherwise,  for  any 
personal-injury."     The  court  say: — 

"  By  the  English  decisions,  it  is  clear  that  the  carrier  has  full  power  to 
provide  by  contract  against  all  liability  for  negligence  in  such  cases. — 
McCowley  v.  The  Furness  Ry.  Co.,  L.  R.  8  Q.  B.  57:  Hall  f .  N.  E.  Ry. 
Co.,  Id.  437;  Duff  v.  The  Great  N.  Ry.  Co.,  L.  R.  4  Irish  Common  Law, 
178;  Alexander  v.  Nepessing  Rd.  Co.,  33  Upper  Canada,  474.  (This  last 
case  is  almost  identical  with  the  one  at  bar.) 

'In  the  United  States  we  flod  much  contrariety  of  opinion.  Some 
State  Courts  of  the  highest  authority  follow  the  English  decisions,  and 
allow  railroad  companies  in  consideration  of  free  passage  to  contract  for 
exemption  from  all  liability  for  negligence  of  every  degree,  provided  the 
exemption  is  clearly  and  explicitly  stated. —  Wells  v.  New  York  Cent.  R  , 
26  Barb.  641,  and  same  case  24  N.  Y.  181;  Perkins  r.  Railroad  Co.,  Id. 
208;  Bissellp.  N.  Y.  Cent.  R.  R.  Co.,  2o]Id.  442;  Poucher  r.  New  York, 
Cent.  R.  R.  Co.,  49  Id.  263;  Maguin  v.  Dinsmore,  56  Id.  168;  Dorr  r. 
New  Jersey  Steam  Nav.  Co.,  1  Kernan,  486;  Kinney  v.  Central  R.  Co.,  82 
N.  J.  L.  409,  and  34  Id.  513;  Western  and  Atlantic  Rd.  r.  Bishop,  60 
Ga.  465. 

"  Other  courts,  also  of  high  authority,  concede  the  right  to  make  snch 
exemption  in  all  cases  of  ordinary  negligence,  but  refuse  to  apply  the 
principle  to  cases  of  gross  negligence.  — Illinois  Cent.  R.  Co.  r.  Reed,  37 
111.  484 ;  Ind.  Cent.  R.  v.  Mundy,  21  Ind.  48 ;  Jacobus  v.  St.  Paul  &  Chicago 
R.  Co.,  20  Minn.  125. 

"  And  other  State  courts  of  equal  authority  utterly  deny  the  power 
to  make  a  valid  contract  exempting  the  carrier  from  liability  for  any 
degree  of  negligence.— Railroad  Co.  v.  Curran,  19  Ohio  St.  1;  Mobile 
&Ohio  R.  r.  Hopkins,  41  Ala.  486;  Pennsylvania  R.  Co.  r.  Henderson,  51 
Pa.  St,  315;  Flinn  v.  Wilmington,  etc.  R.  Co.,  1  Houst.  469. 

"  The  Supreme  Court  of  t  he  United  States  in  Railroad  Co. ».  Lockwood 
(17  Wall.  357),  where  a  driver  had  a  free  pass  to  accompany  his  cattle  on 
their  transportation,  held,  in  opposition  to  the  New  York  and  English 


RAILWAY    COMPANIES FKEK    rA&cSKNUEUS.  387 

portion  of  the  line  over  which  they  had  runniii<r  powcrH, 
[309]     they  had  the  same  duties  aud  were  under  the  liame 

caaes,  that  the  paas  was  not   gratuitous,  because  given   aa  one  of  the 
terms  (ur  carrying  the  cattle  for  which  lie  paid. 

•'Tlie  reasoDing  of  Bradley,  J.,  was  directed  so  strongly  to  the  dispar- 
a^pmeut  of  the  Now  Ynrlj  decisions,  that  it  might  have  indicated  opposi- 
tion to  the  principle  of  those  cases  in  other  respects,  had  not  the  opinion 
coDcluded  with  this  disclaimer:  '  We  purposely  aljstain  from  expri-ssing 
Mny  opinion  as  to  what  would  have  been  the  result  of  our  judgment  had 
we  considered  the  plaintiff  a  free  passenger  instead  of  a  passenger  for 
hire.'  " 

It  may  be  inferred  from  these  citations  that  the  weight  of  authority  Is 
In  favor  of  the  rule  allowing  exemption  from  liability  for  negligence  lo 
such  cases. 

In  some  of  them  the  contracts  were  founded  upon  a  consideration  — 
a«  "drovers  passes"  —  aud  were  not  purely  gratuitous, aud  it  is  believed 
that  but  few  of  them  are  of  the  latter  class. 

The  reasoning  of  the  court  is  not  quite  clear.  If,  as  the  court  say,  the 
arrangement  between  the  parties  ought  not  lo  be  regarded  as  a  contract, 
the  company  is  not  relieved  of  liability,  aud  it  is  dilficult  to  perceive  the 
analogy  the  court  attempts  to  draw  between  the  servant  waiving  the  rule 
of  rwpo/ideat  swpmoj"  iu  case  of  injury  by  the  negligence  of  his  fellow- 
Servant,  and  tlie  passenger  waiving  his  right  of  action  for  the  company's 
negligence. 

The  following  persons  have  been  held  not  passengers  and  not  entitled 

r-'cover  in  case  of  injury:  An  employe  riding  from  his  home  to  his 

e  of  business  and  bacl;  on  a  free  pass. —  Vicli.  r.  New  York  Cent.,  etc., 

o.,  95  N.  Y.  2C7;  Kansas  Pac.  R.  Co.  v.  Salmon,  11  Kan.  83;  Ryan  c. 

iiberland  Valley  R.  Co.,  23  Pa.  St.  384. 

(In  Abell  V.  Railroad  Co.,  Md.  Ct.  App.,  19  Rep.  494,  it  was  held  that 
an  employe  of  a  railroad  company,  riding   to  his  home  on  a  free  pass, 
after  the  services  of  his  employment  are  over  for  the  day,  is  entitled  to 
'iver  for  injuries  caused  by  a  negligent   collision.     The  court,  after 
!i4  as  in   point  Traiuor's  case,  33  Md.  542;  Hutchinson  r.  Railroad 
<-■'.,  6  Eng.  Ry.  &  Canal  Cases,  and  Russell  r.  Railroad  Co.,  5  Duer,  say: 
"  In  the  case  before  us  the  servant  was  not  at  the  time  of  the  injury 
'■y;,  in  the  service  of  the  master.     Nor  was  he  engajied  in   fuliiliing 
part  of  the  contract  with  his  employer.     It  was  no  part  of  his  con- 
tact with  the  railway  company  that  he  should  go  to  Baltimore  to  visit 
his  family,  but  such  visits  were  entirely  outside  and  foreign  to  the  serv- 
ice he  owed  it,  and  what  he  had  contracted  to  perform.     By  the  express 
pennlssion  of  his  superior  officer,  he  was  released  from  the  obligation  of 
service  on  the  day  on  which  he  was  killed.     He  was,  therefore,  on  that 
day,  substantially  a  stranirer,  and  entitled  to  all  the  privileges  he  would 
have  had  if  he  had  no;  been  a  servant,  unless  the  fact  urged  In  the  arga- 


388  MORE    THAN    ORDINARY    CARE. 

obligations  relating  to  their  passengers  as  thej  had  or  were 
[310]  under  in  respect  of  the  portion  of  the  line  which 
was  their  own." 


[311]      Use  of  Premises. 

With  respect  to  the  use  by  railway  companies  of  their 
premises,  in  their  capacity  as  carriers  {a),  it  has  in  some 
cases  been  held  that  there  was  no  negligence  and  in  others 
that  there  was,  and  it  is  difficult  to  extract  from  them  any 
[312]  principle  whatever;  and  in  truth  it  is  obvious  that 
each  case  must  mainly  depend  upon  its  own  peculiar  circum- 
stances (6).     It  may  perhaps  be  gathered  that  in  general 

(a)  The  question  of  the  use  by  them  (6)  See  j>er  Kelly,  C.  B.,  In  Rose  v.  N. 

ol  their  premises  not  in  their  capacity  E.  Ry.  Co.,  34  L.  T.  763,  per  Coleridge,  C. 

as    carriers,  but   as  corporations  using  J.,  in  Robson    v.  N.  E.  Ry.  Co.,  L.  R.  i 

their  own  property,  naturally  arranges  Q.  B.  D.  85;  46  L.J.  Q.  B.  50,  C.  A. 
itself  under  the  head  of  "  Corporations," 
or  of  "  Owners  of  Property,"  supra. 

ment,  by  the  appellee,  tliat  he  was  riding  in  the  cars  upon  an  employe's 
pass,  will  alter  the  case. 

"  The  pass  was  no  part  of  the  contract  between  Abell  and  the  railroad. 
The  contract  between  them  was  to  pay  a  certain  sum  for  a  day's  work. 
It  was  given  as  a  mere  gratuity,  and  as  other  papers  are  given.  No 
action  for  a  breach  of  contract  could  have  been  maintained  by  Abell,  If 
the  road  had  taken  away  the  pass  at  any  time.  Sometimes  a  special  con- 
tract is  made  with  the  recipient  of  the  pass,  and  written  or  printed 
on  it,  that  the  person  accepting  the  pass  will,  in  consideration  thereof, 
assume  all  the  personal  risk  incident  to  the  travel.  "We  must  not  be  un- 
derstood to  decide  upon  the  legal  effect  of  such  a  contract.  That  ques- 
tion does  not  arise  in  this  case,  and  it  will  be  time  enough  to  decide  it 
when  it  does  arise.  All  that  we  mean  now  to  decide  is,  that  when  the 
carrier  undertakes,  without  any  special  contract,  to  carry  a  passenger 
gratuitously,  that  he  is  entitled  to  the  same  degree  of  care  as  if  he  had 
paid  his  fare.") 

A  newsboy  selling  papers  on  the  train.  —  Snyder  v.  Hannibal,  etc.,  R- 
Co.,  60  Mo.  413. 

One  riding  on  the  train  and  voluntarily  assisting  an  express  agent.  — 
Union  Pac.  R.  Co.  v.  Nichols,  8  Kan.  505. 

Or  one  riding  on  a  locomotive  and  assisting  the  fireman.  —  Woolsey 
V.  Chicago,  B.  &  Q.  R.  Co.,  39  Neb.  798;  58  N.  W.  Rep.  444. 


I :. \II.WAV    COMPANIES USE   OP   PREMI8K8. 


389 


whcff  an  accident  happens  by  reason  (»f  somothinc;  unustiiil 
beln^  done  ut  that  moment  (c)  by  the  company  there  hiis 
[313]  been  nojj^li^ence;  but  where  an  accident  happens 
in  the  usual  and  eveiy-day  course  of  events  ((/),  and  there 
has  been  nothing  done  by  the  company  varying  that  course 
(e),  which  course  has  existed  for  some  time  and  from 
which  no  accident  has  happened,  then  the  presumption  is 
tbftt  there *is  no  negligence  on  the  part  of  the  company, 
but  either  the  injury  is  a  pure  accident,  or  the  phiintiff  lias 
only  himself  to  blame. 

In  Watkins  r.  G.  W.  Ky.  Co.  (/),  two  learned  judges, 
Denman  and  Lopes,  JJ.,  differed  as  to  whether  there  was 
any  evidence  of  negligence  in  placing  a  plank  across  a 
staircase  so  as  to  catch  the  head  of  a  passenger  descending. 
It  would  seem  the  question  ought  to  have  been  left  to  the 
jury  as  well  as  the  question  of  contributory  negligence. 
There  was  the  fact  of  an  unusual  state  of  the  j)reniise9 
arguing  negligence  on  the  part  of  the  defendants,  and 
there  was  evidence  that  the  plaintiff  was  so  careless  as  not 
to  look  where  she  was  goinij,  and  her  own  neiji licence 
may  have    been    the    proximate    cause.     There    docs  not 


(f)  Shcppord  V.  Mid.  Ry.  Co-.S.-i  L.  T. 
9n;-J0  W.  K.  "05(icoon  platform) ;  Nich- 
olson V.  L.  A  Y.  Ily.  Co.,  35  L.  J.  Kx.  84  ; 
3  H.  AC.  534  (hamper  taken  from  train 
•nd  placed  by  sldo  of  line) ;  Crafter  r. 
.Met  Ry.  Co.,  L.  U.  1  C.  P.  .SOO;  35  L.  J.  C. 
r.  132  (slipping  on  steps  nosed  with 
bnu;  SCO  al.so  Davis r.  L.  B.  &  S.  0.  Uy., 
2  F.  &  F.  im) ;  Hognn  r  S.  E.  Ry.  Co.,  28 
I*  T.C.  r.  271  (overcrowded  i)latform); 
Jackson  r.  Metropolitan  Ry.  Co.,  L.  R.  10 
C.  P.  49;  u  L.  J.  C.  P.  83  (overcrowded 
platform,  InBudlclentporiers);  overruled 
on  appeal.  L.  R.  3  App.  Cafl.  l'.»:!;  47  L.  J. 
H.  I..  303;  see  also  Wilkinson  r.  Fairlc, 
33  L.  J.  Ex.  7.3;  1  II.  A  C.  633  (carman 
went  Into  dark  passage  and  fell  down 
sUircane.  a  different  thing  from  a  hole 
orlrapdoor.) 

(d)  Cornman  v.  East  Ry.  Co.,  20  L.  J. 
Ex- 94;  niackman  r.  L.  B.  &  S.  C.  Ry., 
17W.  R.  7r.it  (weighing  machine  In  usual 
pl«c«);  Crafter  v.  Met.  Ry.  Co..  ;!•■)  L.  J. 


C.  P.  132  (brass  bound  hteps  worn 
smooth) ;  Daniel  r.  .Met.  Rv.  Co  .  L.  R.  5 
II.  L.  45  (girder  falling— Lord  Ilhthor- 
ley  remarks  the  workmen  employed  had 
never  known  an  accident  before  this 
time) ;  Owen  r.  G.  W.  Ry.  Co.,  4<>  L.  J. 
Q.  B.  486,  per  Lush,  J.  (market  train,  aa 
usual,  too  long  tu  pull  up  at  platform, 
unusual  accident);  Toomey  r.  I..  B.  & 
S.  C.  Ry.  C,  27  I..  J.  C.  P.  3'.» ;  3  C.  B. 
N.  8.  146  (urinal  and  lamp  room  close 
together,  plaintiff  injured  by  going  Into 
latter  by  mistake) ;  Ut.  T.  W.  Ry.  Co.  r. 
DavicB,  3'.>  L.  T.  N.  P.  475  (cow  Injured 
by  insnniclcDcy  of  catch  to  gate  on  level 
crossing  which  had  been  safely  used  for 
nine  years) ;  sec  also  Patchell  v.  Irish 
N.  W.  Ry.  Co.,  6  Ir.  R.  C.  L.  117. 

(<)  See,  ;n>»f,  as  to  "  IVeaumpUons," 
Ch.  VI. 

(/)  Watkins  r.  Gt.  W.  Ry.  Co.,  46  L. 
J.  817. 


390  MORE   THAN   OUDINARY   CARE. 

appear  to  have  been  any  appeal  in  the  case  (g).  So,  too, 
railway  companies  ought  to  guard  against  unusual  crowds 
[314]  of  which  they  have  notice,  such  as  those  occasioned 
by  excursion  trains  (h). 

Where  a  plank  and  roll  of  zinc  fell  upon  a  passenofer 
through  a  roof  upon  which  a  man  was  moving  about  for  the 
purpose  of  seeing  to  repairs,  it  was  held,  in  the  absence  of 
any  evidence  to  show  that  the  man  was  negligent,  or  that 
the  defendants  knew,  or  had  the  means  of  knowing,  that 
the  roof  was  insecure,  there  was  no  evidence  of  negligence 
at  all  (^). 

Railway  companies,  either  expressly  or  implied!}'-,  invite 
persons,  who  are  intending  travelers  (k),  upon  their  prem- 
ises and  into  their  carriages,  and  in  so  doing  put  them  off 
their  guard  by  a  sort  of  warranty  of  safety  ;  and  they  are, 
therefore,  bound  to  use  toward  such  persons  something  more 
than  ordinary  care;  and  there  seems  to  be  in  the  case  of 
railway  companies  an  additional  reason  for  the  exercise  of 
great  care  in  the  fact  of  the  greatness  of  the  danger,  and 
the  inability  of  the  passenger  to  help  himself  (I). 

Where  the  defendants  made  a  bridge  for  more  convenient 
access  from  one  platform  to  another,  and  a  passenger  was 
injured  in  crossing  by  reason  of  the  bridge  being  badly 
built,  the  defendants  were  held  liable  (in)  upon  the  ground 

(g)  Abbott  V.  Freeman,  a5  L.  T.  N.  S.  etr..,  is  misleading  has  been  the  subject 

783,  reversing  31  L.  T.  N.   S.  514  (horse  of   c.'>  .flictinj;    decisious    In    America, 

being   shown  at  Aldridge's  kicked  the  Chifnto  Jly.  Co.  v.  Robinson,  8  111.  HO; 

plaintiff).  Cohen  r.  Eureka  Ry.    Co.,  14  Xev.  37C; 

(70  Hogan  v.  S.  E.  Ry.  Co.,  28  L.  T.  N.  Teunsj  Ivania  Ry.  v.  Righter,  43  X.J.  L. 

8.  271  (person  pushed    olf   platform  by  180,    See  contra.  Banting  v.  Central  Pa- 

uncontrolled  crowd).  clfic  Co.,  14  Nev.  .3ol. 

(0  Welfare  v.  L.  15.  &  S.  C.  Ry.  Co.,  (m)  Longuiore  v.  G.  W.  Ry.  Co.,  19  C. 

L.  R.  4  Q.  B.  693;  38  L.  J.  Q.  B.  241.     As  B.  X.  S.  ]S3;    35    L.    J.    C.  P.  135,  note, 

lohavlng  the  means  of  knowing  whether  There  was  a  safe  bridge  further  off  by 

things  are  in  a  safe  condition  or  not,  see  which  the  plaintiff  might  have  crossed. 

Withers  v.  North  Kent  Ry.,  27  L.  J.  Ex.  —  [Gillmore  v.  Philadelphia  &  R.  R.  Co., 

417;   International  Ry.  Co.  v.  Halloren,  l.:4  Pa.  St.  375;  25  Atl.  Rep.  774;  Johns 

63  Tex.  46;  37  Am.  Rep.  744.  v.  Charlotte,  C.    &   A.    R.    Co.,  39  S.  C. 

(k)   And  even   those    accomimnying  162;  17  S.  E.  Rep.   698;    East   Tenn.,  V. 

passengers  to  see    them  off  (I  suppose  &  G.  R.  Co.  v.  Watson,  94  Ala.  634;  10  So. 

reasonably  doing  so).  Rep.  228.] 

(/)  How  far  the  absence  of    signal.s, 


UAILWAV    COMPANIK8 USK    UK    I'UEMISRS.  301 

that  the  passenger  was  invited  to  use  the  briii^e.  So 
where  the  company  have  always  allowed  paHseiiircrs  to 
cross  by  a  purticulur  path  it  is  eciuivalciit  to  an  assuranco 
that  they  may  safely  use  it  (n).  And  wliore  there  is  a  sta- 
tion unprovided  with  a  fo()tl)ridge  and  the  company  by 
[315]  their  asts  invite  persons  to  cross  the  mils,  they  are 
bound  to  take  more  than  ordinary  care  (o). 

When  notices  have  been  put  up  forbidding  persons  to 
cross  the  line,  but  the  company's  servants  have  allowed  the 
notice  to  be  disregarded,  such  notices  arc  >io  answer  to  an 
action  for  negligence  (p),  but  where  there  is  no  sufficient 
evidence  of  the  company's  ac(iuicscence  in  the  pa<sen<:er'9 
crossing  the  line,  it  is  the  passenger's  own  negligence  if  he 
crosses  the  line,  being  aware  of  a  bridge  provided  on  pur- 
pose for  crossing  (q). 

Carriers  of  passengers  are  not  liable  for  any  injury  oc- 
casioned by  anything  extraneous  to  the  work  in  which  they 
are  engaged,  and  as  to  which  they  had  no  reasonal)le 
ground  for  supi)osing  that  ordinary'  and  proper  care  had  not 
been  taken  by  those  persons  whose  duty  it  was  to  take  such 

(n)  See  Rogers  v.  Uhymney  Uy.  Co.,  points  they  are  not  bound  to  protect 
96  L.  T.  X.  S.  1870.— [Missouri  I'ac.  Ry.  such  persons, especially  if  persons  gun- 
Co.  f.  Long,  81  Tex.  253;  10  S.  W.  Kcp.  erally  cross  at  a  particular  point,  liar- 
1016.]  rl-son  v.  N.  K.  Ry.  Co.,  '.".I  L.  T.  K.  S.  844. 

(o)  Girdwood  v.  N.  B.  Ry.  Co.,  Court  This  case  does  not  appear  to  have  been 
Of  Session,  4th  series,  Vol.  IV.  p.  115.          '    Cited  on  the  argument  In  Dublin,  W.  & 

Cp)  Dublin,  W.  &  W.  Ry.  Co.  r.  Slat-  W.  Ry.  Co.  v.  Slattery. 

tery,  L.  R.  3  App.  Gas.    1155.    It   seems  (7)  Wilby  v.  Midland  Ry.  Co.,  M  L.  T. 

that  If  the  company  acquiesce  in  persons  N.  S.  244  t^.  R. ;  Clarke  r.  Md.  Ry.  Co.,  43 

eroBBlng  their  lines  promlscnoasly  at  all  L.  T.  N.  S.  381. 

It  is  said  in  Wood  on  Railroads  (1894)  :— 

"No  precise  rule  of  diligence  can  be  stated,  but  the  company  is  bound 
to  construct  its  roadway  in  sucli  a  manner  tliat  it  may  resist  all  actions  of 
the  weather  from  Hoods  or  whatever  cau.><e  arising  that  may  be  expected 
to  occur,  although  only  at  long  intervals;  and  as  a  necessary  consiquente 
If  extraordinary  or  unprecedented  floods  have  once  occurred  it  must 
redouble  its  vigilance  and  place  its  embankments  in  such  a  condition  a,s 
to  resist  others  of  similar  severity  or  intensity."  p.  1224;  citing  P'lKt 
V.  St.  Louis,  etc.,  K.  Co.,  70  Mo.  518;  12  Am.  &  Eng.  U.  Cas.  183;  Ely  v. 
St.  Louis,  etc  ,  K.  Co  ,  77  Mo.  34;    International  R.  Co.  c.  Ilalloreu,  53 


392  MORE   THAN    ORDINARY    CARE. 

[316]  care  (r).  They  are  bound  to  see  that  everything 
under  their  own  control  is  in  full  and  complete  and  proper 
order  (s). 

So  they  are  bound  to  construct  their  works  so  as  to 
resist  all  ordinary  storms,  &c.,  which  may  reasonably  be 
expected,  though  they  may  be  of  rare  occurrence  (t). 

Proprietors  of  coaches  and  carriages  are  responsible  to 
those  whom  they  invite  to  enter  their  vehicles  (u). 

(r)  Daniel   v.  Met.    Ry.  Co.,   L.  R.  5  169  (improper    construction   of   coach, 

Eng.  &  Ir.  App.  45.  omission  of  Iron  railing  between  Inggage 

(s)  lb.  and   passenger);   Templeman   v.  Hay- 

(<)  G.  W.  Ry.  Co.  of  Canada  v.  Faw-  don,  12  C.  B.  507  (shafts  of  cart  break- 

cett,  1  Moo.  P.  C.  N.  S.  101.  ing;    Welch    v.    Laurance,  2   Chit.   262 

(m)  Bremner  v.   Williams,  1  C.  &  P.  (chainstay  of  cart) ;  Israel  v.  Clarke,  4 

414  (coach  just  prepared  and  examined  Esp.  259  (overloading  a  coach);  so  also 

two    journeys     before    accident,    held  are   fe;rymen,  see  Willoughby  v.  Hor- 

liable) ;  Curtis  v.  Drinkwater,  2  B.  &  Ad.  ridge,  12  C.  B.  742. 

Tex.  46;  37  Am.  Rep.  744;  Baltimore,  etc.,  R.  Co.  v.  Sulpher  Springs, 
96  Pa.  St.  65. 

Again  at  p.  1221  the  same  author  says: — 

"  Thus,  while  it  is  undoubtedly  bound  to  construct  them  (bridges)  in 
such  a  manner  as  to  withstand  the  effects  of  ordinary  freshets,  or, 
possibly,  extraordinary  freshets,  yet  it  is  not  responsible  for  not  securing 
them  against  unprecedented  freshets,  such  as  could  not  have  been  reason- 
ably foreseen  or  guarded  against."  Citing  Gillespie  v.  St.  Louis,  etc.,  E. 
Co.,  6  Mo.  App.  554;  and  Philadelphia  R.  Co.  v.  Anderson,  94  Pa.  St.  351. 
In  that  case  it  was  held  that  a  railroad  company  was  liable  for  injury  to 
a  passenger  resulting  from  the  washing  away  of  an  embankment  by  an 
extraordinary  freshet  where  the  nature  and  formation  of  the  surrounding 
soil  was  such  that  the  washout  could  have  been  avoided  by  proper  care. 

(m)  It  would  seem  that  proprietors  of  stage  coaches  were  not  held  to 
the  same  degree  of  care  as  railway  companies.  But  according  to  the 
expressions  used  in  decided  cases  they  are  bound  to  exercise  the  great- 
est care  towards  passengers,  and  are  liable  for  slight  negligence.  "  Pas- 
senger carriers  are  liable  for  injuries  resulting  from  even  the  slightest 
negligence.  *  *  *  They  are  bound  to  use  the  utmost  care  and  dili- 
gence of  cautious  persons  to  prevent  injury  to  passengers." — Farish  w. 
Reigle,  11  Gratt.  697;  Fairchild  v.  Cal.  Stage  Co.,  13  Cal.  599;  Derwort 
V.  Loomer,  21  Conn.  245;  Gallagher  v.  Bowie,  66  Tex.  265;  17  S.  W.  Rep. 
407. 

"The  highest  degree  of  care  which  a  reasonable  man  would  use  is 
required."— Hall  v.  Connecticut  River  Steamboat  Co.,  13  Conn.  319. 

The  duties  of  stage  coach  proprietors,  in  respect  of  furnishing  proper 


0AERIER8 STAGE   COACHES.  393 

[317]  And  it  has  bcea  held  that  the  proprietor  is  liable 
for  latent  defects  (x)  provided  the  defect  could  htive  been 

(x)  Sharp  r.  Gray,  '■>  Ulng.  457.  As  to  latent  defects,  ace  lUindall  v.  Nowhoiuo, 
ante. 

and  suitable  vehicles,  are  well  stated  by  Mr.  Justice  Story,  In  Story  on 
Bailments.— ^2  592-5D4,  598,  t!00,  (502. 

"  In  the  next  place  they  are  bound  to  provide  coaches  reasonably  strong 
and  aufllcient  for  the  journey,  with  suitable  harness,  trappings  and 
equipments,  and  to  make  a  proper  examination  thereof  previous  to  each 
journey. —  Bremmer  v.  Williams,  1  Car.  &  V.  114;  Crofts  v.  Walerhouse, 
3  Blnp.  321;  Jones  r.  Boyce,  1  Stark.  493;  Christie  v.  Griggs,  2  Camp.  80; 
I  Bell's  Comm.  (^oth  ed.)  4(J2;  Sharp  v.  Grey,  9  Bing.  457;  Camden,  etc., 
R.  Co.  1-.  Burke,  13  Wend.  Gil,  C27,  028. 

"  In  other  terms,  they  arc  bound  to  provide  roadworthy  vehicles  suit- 
able for  the  safe  transportation  of  passengers.  If  they  fail  in  any  of 
these  particulars,  and  any  damage  or  injury  accrues  to  the  passengers, 
they  will  be  responsible  to  the  full  extent  thereof. —  Aston  v.  Heaven,  2 
Esp.  533;  1  Bell's  Comra.  (5th  ed.)  4(J2,  4G3;  Sharp  b.  Grey,  9  Bing.  457; 
Camden,  etc.,  R.  Co.  v.  Burke,  13  Wend.  Gil.  Hence  it  has  been  held 
that  if  there  is  any  defect  in  the  original  construction  of  the  stage 
coach  —  as,  for  example,  in  the  axletree  —  although  the  defect  be  out  of 
sight  and  not  discoverable  upon  a  mere  ordinary  examination,  yet  if  the 
defect  might  be  discovered  by  a  more  minute  examination,  and  any  dam- 
age is  occasioned  to  the  passengers  thereby,  the  coach  proprietors  are 
answerable  therefor. —  Sharp  r.  Grey,  9  Bing.  457;  Christie  v.  Griggs,  2 
Camp.  80.  The  same  rule  will  apply  to  any  other  latent  defect  which 
might  be  discovered  by  more  minute  examination  and  more  exact  dili- 
gence whereby  the  work  is  not  roadworthy  and  damage  thereby  accrues 
to  any  passenger.  In  this  respect  there  does  not  seem  to  be  any  differ- 
ence between  the  cases  of  a  stage  coach  which  is  not  roadworthy  and  of 
a  ship  which  is  not  seaworthy. —  Sharp  v.  Grey,  9  Bing.  457;  Christie  r. 
Griggs,  2  Camp.  89;  Camden,  etc.,  R.  Co.  v.  Burke,  13  Wend.  611;  IIollls- 
ter  r.  Nowlen,  19  Wend.  234;  Cole  v.  Goodwin,  19  Wend.  251;  Lawrence 
V.  Green,  70  Cal.  417;  II  Pac.  Rep.  750. 

Stage  companies  are  required  to  furnish  suitable  horses  and  drivers 
(Knight  V.  Pacific  Coast  Stage  Co.  (Cal.),  34  Pac.  Rep.  868;  Gallairher 
V.  Bowie,  CG  Tex.  265'.  17  S.  W.  Rep.  407)  ;  and  also  coach  lights  on  dark 
drives.— Anderson  v.  Scholey,  114  Ind.  553;  17  N.  E.  Rep.  125. 

Bailway  Premises. — Railroad  companies  are  under  obligations  to  pro- 
vide reasonable  accommodations  at  stations  for  passengers  who  are 
invited  and  expected  to  travel  on  their  trains. —  McDonald  v.  Chicairo, 
etc.,  R.  Co.,  2G  la.  124;  Bennett  v.  Louisville,  etc.,  R.  Co.,  102  U.  S.  577; 
Imhoff  r.  Chicago,  etc.,  R.  Co.,  20  Wis.  SiM;  Stewart  r.  International, 
etc.,  R.  Co.,  53  Tex.  89;  Columbus,  etc.,  R.  Co.  v.  Farrell,  31  Ind.  408; 


394  MOKE    THAN    OKDINAKY    CAKE. 

dis-     [318]     covered  on  examination,  or  could  have  been 
prevented  in  the  course  of  manufacture  (y). 

()j)  Redhead  v.  Mid.  Ry.  L.  R.  2  Q.  B.      ardson  v.  Eastern  Ry.,  L.  R.  1  C.  P.  D. 
412;  4Q.  B.  379;  38  L.  J.  Q.  B.  169;  Rich-       342. 


Knight  V.  Portland,  etc.,  R.  Co.,  56  Me.  234;  Gaynor  v.  Old  Colony,  etc., 
R.  Co.,  100  Mass.  211;  Sweeny  v.  Old  Colony  R.  Co.,  10  Allen,  373;  Falk 
V.  New  York,  S.  &  W.  R.  Co.,  56  W.  J.  L.  380;  29  Atl.  Rep.  157;  Atchi- 
son, T.  &  S.  F.  R.  Co.  V.  Shean,  18  Colo.  368;  33  Pac.  Rep.  108;  Gulf,  C. 
&  S.  F.  Ry.  Co.  V.  Butcher,  83  Tex.  309;  18  S.  W.  Rep.  583;  Evans  y. 
Interstate  R.  T.  Ry.  Co.,  106  Mo.  594;  17  S.  W.  Rep.  489;  Burnham 
V.  Wabash  W.  Ry.  Co.,  91  Mich.  523;  52  N.  W.  Rep.  14;  Texas  &  P.  Ry. 
Co.  V.  Brown,  78  Tex.  397;  14  S.  W.  Rep.  1034;  Pennsylvania  Co.  v. 
Marion,  123  Ind.  415;  23  N.  E.  Rep.  973;  Richmond  City  Ry.  Co.  v.  Scott, 
86  Va.  902;  11  S.  E.  Rep.  404;  Green  w.  Pennsylvania R.  Co.,  36  Feci.  Rep. 
66:  Cross  u.  Lake  Shore  &  M.  S.Ry.  Co.,  69  Mich.  363;  37  N.  W.  Rep.  361; 
Smith  V.  Central  R.  &  B.  Co.  (Ga.),  5  S.  E.  Rep.  772;  Fordyce  v.  Merrill, 
49  Ark.  277;  5  S.W.  Rep.  329;  Turner  w.Vicksburg,  etc.,  R.  Co.,  37  La.  Ann. 
648;  55  Am.  Rep.  514;  Reynolds  v.  Texas  &  P.  Ry.  Co.,  37  La.  Ann.  694. 

(A  lady  waiting  at  a  railway  station  for  passage  upon  a  train  soon  to 
depart,  was  invited  by  the  ticket  agent  to  sit  in  an  empty  car  standing  on 
the  side  track  while  the  station-room  was  being  cleaned.  It  was  held 
that  she  was  entitled  to  the  same  protection  from  the  company  while  in  the 
car  as  if  in  the  regular  waiting-room;  in  either  case  she  was  a  passenger 
in  the  care  of  the  company.  The  train  to  which  the  car  was  attached 
began  to  be  moved  without  conductor  or  brakeman  on  board,  and  with- 
out signal  or  notice.  The  ladies  were  startled  and  alarmed  lest  they 
should  be  carried  away,  and  they  hastened  to  the  rear  of  the  car  and 
jumped  out,  while  the  car  was  still  abreast  of  the  platform  and  appar- 
ently moving  slowly.  One  of  them  was  thrown  down  and  injured,  and 
obtained  a  verdict  against  the  company  of  $3,091.66  for  that  injury.  It 
was  held  that  the  facts  did  not  require  that  the  verdict  be  set  aside.— 
Shannon  v.  Boston,  etc.,  R.  Co.,  78  Me.  52. 

"They  are  bound,"  said  the  court  in  McDonald  v.  Chicago,  etc.,  R. 
Co.,  26  la.  124,  "to  keep  in  safe  condition  all  portions  of  their  platforms 
and  approaches  thereto  to  which  the  public  do  or  would  naturally  resort, 
and  all  portions  of  their  station  grounds  near  to  the  platform  where 
passengers  or  those  who  have  purchased  tickets  with  a  view  to  take 
passage  on  their  cars  would  naturally  or  ordinarily  be  likely  to  go." 

They  have  accordingly  been  held  liable  for  injuries  caused  by  defective 
platforms.  (McDonald  v.  Chicago  B,.. Co.,- supra;  Dobiecki  v.  Sharp,  88 
N.  Y.  203;  St.  Louis,  etc.,  R.  Co.  v.  Cantrell,  37  Ark.  519;  Louisville, 
etc.,  R.  Co.  V.  Wolfe,  80  Ky.  82;  Fullerton  v.  Fordyce,  121  Mo.  1;  25 
S.  W.  Rep.  587;  Louisville,  N.  A,  &  C.  Ry.  Co.  v.  Lucas,  119  Ind.  583;  21 
N.  E.  Rep.  968;  Keefe  v.  Boston  &  A.  R.  Co.,  142  Mass.  251) ;  for  failure 


KAII.WAY    COMPANIES USE    OF    PUKMI8KS.  31»5 

[319]  So  al>()  railway  companies  arc  lialilc  for  the 
faulty  conrflruc-tioii  of  carriaj^cs  into  wliich  tlicy  invite;  trav- 
elers, except  as  to  latent  undi^coverablc  defects  (z). 

(r)  Sco    Kcvlhead     f.    MUl.    Uy.    Co.,  Bclenco  mny  auggcat) ;  but  whcro  acoin- 

luprii;  lllclinnlson  r.  G.  East.  Uy.  Co.,  pany  had  teotcd  a  wheel,  but  aftfrwarda 

wpni;  (toe  al8o  .Stokes  c.  Kast.  Co.  Ry.,  2  did  not  test  It  for  eoiiie  time,  the  Jury 

F.  A  K.  G91 ;  Ford  v.  L.  &  S.  W.  Ky.  Co.,  2  having  found  that  they  ought,  a  rule  for 

F.  &  F.  730  (not  bound  to  use  every  pos-  n  new  trial  wan  refused,  .ManHer  v.  East 

•Ible    precaution     which       speculative  Co.  Uy.  C,  8  L.  T.  N.  4.  585. 


to  keep  them  clear  of  s>uow  and  Ice  (Weston  v.  EU*vated  R.  Co.,  73  N.  Y. 
595;  TInipsou  v.  Manhattan  Ky.  Co.,  52  Ilun,  48;>;  5  N.  Y.  S.  Rep.  G84)  ; 
ami  they  have  been  hehl  liable  for  a  failure  to  keep  them  properly  lishted 
for  the  safe  ingress  and  egress  of  passengers. — Patten  v.  Chicago,  etc., 
R.  Co.,  32  Wis.  524;  Beard  w.  Connecticut,  etc.,  K.  Co.,  48  Vt.  101; 
Knight  V.  Portland,  etc.,  R.  Co.,  56  Me.  234;  Peniston  v.  Chicago,  etc.,  R. 
Co.,  34  La.  Ann.  777;  44  Am.  Rep.  444;  Jarvis  v.  Brooklyn  El.  R.  Co.,  183 
N.  Y.  623;  30  N.  E.  Rep.  1150;  IG  N.  Y.  S.  Rep.  96;  Galveston,  II.  &  S. 
A.  Ry.  Co.  V.  Thorusberry  (Texas),  17  S.  W.  Rep.  521;  Alexandria 
&  F.  R.  Co.  V.  Herndon,  87  Va.  193;  12  S.  E.  Rep.  28'J;  Alabama  G.  S. 
R.  Co.  0.  Arnold,  84  Ala.  159;  4  So.  Rep.  359;  Grimes  r.  Pennsylvania 
Co.,  36  Fed.  Rep.  72.  So  where  a  passageway  from  the  waitinii-room  to 
the  tracks  is  so  narrow  that  it  cannot  be  safely  used  by  persons  intend- 
ing to  become  passengers. — Redner  v.  Lehigh  &  II.  Ry.  Co.,  73  IIuu,  562; 
26  N.  Y.  S.  Rep.  1050.  But  the  pa.^senger  must  himself  be  without 
fault.— Renneker  v.  South  Carolina  Ry.  Co.,  20  S.  C.  219;  Palmer  i'. 
Pennsylvania  Co.,  Ill  N.  Y.  488;  18  N.  E.  Rep.  859;  Lafflin  i'.  Buffalo  & 
8.  W.  R.  Co.,  lOG  N.  Y.  136;   12  N.  E.  Rep.  599. 

Railway  companies  do  not  owe  the  same  care  In  respect  to  the  safe 
condition  of  their  premises  to  licensees  or  those  who  resort  to  them  for 
coDveuieiice  or  pleasure  only.  And  where  one  took  refuge  from  a  storm 
In  a  station  house  and  was  injured  by  a  portion  of  the  building  being 
blown  down  upon  him,  the  company  was  held  not  liable. —  Pittsburgh, 
etc.,  R.  Co.  V.  Bingham,  29  Ohio  St.  374.  See  Redigau  v.  Boston  &  M.  R. 
Co.,  155  Ma.»s.  44;  28  N.  E.  Rep.  1133. 

So  where  one  of  a  crowd  which  had  gathered  upon  a  railway  platform 
to  witness  a  parade,  was  injured  by  its  giving  way,  it  was  held  that  no 
recovery  could  be  had  against  the  company. —  Gillis  v.  Pennsylvania  R. 
Co.,  59  Pa.  St.  129. 

And  where  plaintiff,  who  was  well  aciiuainted  with  the  locality,  fell 
Into  a  turn-table  located  in  the  street  when  there  was  a  well-beaten  path 
on  the  side  of  the  street  several  feet  from  the  turn-table,  he  cannot 
recover  damages.— Early  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  66  Mich.  .349; 
83  N.  W.  Rep.  813. 

The  obligation  of  exercising  care  in  keeping  their  platforms  and 
grounds  in  a  safe  condition  extends  not  only  to  passengers,  but  to  those 


396  MORE   THAN   ORDINARY    CARE. 


Use  of  Train  and   Carriages. 

There  have  been  numerous  decisions  upon  the  question 
whether  the  fact  of  a  train  not  pulling  up  at  a  platform, 
coupled  with  other  circumstances,  is  negligence  or  not. 
Those  other  circumstances  are  diflferent  in  each  case,  and 
are  the   turning    points    in    each   decision  (a).     In  these 

(a)  See  remarks  by  Kelly,  G.  B.,  in      ridge,  C.  J.,  in  Robson  v.  N.  E.  Ry.  Co., 
Rose  V.  X.  E.  Ry.  Co.,  infra:  and  by  Cole-      infra. 


■who  come  upon  the  premises,  having  business  with  the  company.  In  one 
case  (Tobin  v.  Portland,  etc.,  R.  Co.,  59  Me.  183)  the  company  was  held 
liable  for  injuries  to  a  hackman  carrying  a  passenger  to  the  depot,  by 
stepping  into  a  hole  in  the  platform.  In  another  case  plaintiff  was 
injured  while  on  the  platform  reading  for  another,  who  could  not  read, 
a  posted  notice  of  stock  killed  by  trains. —  St.  Louis,  I.  M.  &  S.  Ry.  v. 
Fairnbairn,  48  Ark.  491;  4  S.  W.  Rep.  50. 

Railway  companies  must  not  only  keep  their  platforms  in  good  condi- 
tion, and  properly  lighted,  but  they  must  make  them  of  sufficient  width. 
"Where  one  was  struck  and  injured  by  a  train  of  cars  which  extended  over 
a  narrow  platform,  leaving  a  space  of  but  two  feet  upon  which  to  stand, 
the  company  was  held  liable. —  Chicago,  etc.,  R.  Co.  v.  Wilson,  63  111.  167. 

And  where  a  passenger,  while  waiting  upon  the  platform  of  a  station, 
was  injured  by  a  mail  bag  thrown  from  the  train,  according  to  custom, 
and  while  the  train  was  running  at  full  speed,  it  was  held  he  had  a  right 
of  action  against  the  company. —  Snow  v.  Fitchburg  R.  Co.,  136  Mass. 
552;  49  Am.  Rep.  40;  Carpenter  v.  Boston,  etc.,  R.  Co.,  97  N.  Y.  494.  See 
Muster  v.  The  Chicago,  etc.,  Ry.  Co.,  61  Wis.  325.  So  where  a  passen- 
ger is  injured  by  stumbling  over  mail  bags  in  the  dark,  although  the  bags 
were  thrown  out  by  postal  clerks. —  Sargent  v.  St.  Louis  &  S.  Ry.  Co., 
114  Mo.  348;  21  S.  W.  Rep.  823. 

And  where  one  assisting  a  friend  who  was  about  to  take  the  train  to 
carry  his  trunk  across  the  railway  platform,  five  to  eight  feet  wide,  and 
was  struck  by  the  bumper  of  a  car  projecting  eighteen  inches  over  the 
platform,  the  question  of  plaintiff's  contributory  negligence  was  submit- 
ted to  the  jury,  the  testimony  being  conflicting  as  to  whether  a  bell  or 
whistle  was  sounded. —  Langan  v.  St.  Louis,  etc.,  Ry.  Co.,  72  Mo.  392. 
See  Texas  &  Pac.  Ry.  Co.  v.  Best,  66  Tex.  116;  Hamilton  v.  Texas  &  P. 
Ry.  Co.,  G4  Tex.  251;   63  Am.  Rep.  756. 

Where  one  went  to  a  depot  to  meet  his  wife,  expected  on  an  incoming 
train,  and  fell  into  a  hole  on  the  company's  grounds,  while  in  search  of  a 
pl.ice  to  urinate,  the  comp.iiiy  having  provided  no  accommodation  for  that 


USB    OF   TIIAIN    AND    CAUUIAOES.  397 

[320]     casos,  as  in  all  others,  the  riucstion  of  ncf^ligence  it* 
entirely  one  for  the  jury  (b).     There  is  probably  no  nei^Ii- 

(6)  nrldRes  r.  North  Tendon  Ry.  Co.,       dcnce,  u  Judge  would  non-suit ;  Met.  Uy. 
tn/ra;    lic(l>s()n    r.  N.  K.   Uy.  Co.,  infra,       Co.  d.  Jackson.    Seo  ante. 
iIiuukI>  upun    n    ineru    BuliillUa  of    cvl- 


pnrpose,  it  was  held  liable  for  injuries  received. —  McKone  v.  Michigan 
•  tut.  K.  Co.,  51  Mich.  (Jl;  47  Am.  Uep.  5'JC>. 

But  wIrt.-  ont;  went  to  meut  his  wife  on  an  incomin:^  train  aiicl  boarded 
the  train  outside  of  the  depot,  and  while  attemptiuii  t)  puss  from  one  car 
to  another  It  11  off  of  tlie  platform,  wliicli  was  insulliciently  lighted,  it 
was  held  he  could  not  recover,  the  court  saying  that  by  leaving  thedepo 
!ind  {joins  on  to  the  tracli:,  he  forfeited  the  right  of  a  passenger. —  Stiles  v. 
The  Atlanta,  etc.,  R.  Co.,  G5  Ga.  370. 

In  Morris  r.  New  Yorli  Cent.  R.  Co.  (106  N.Y.  078;  13  N.  E.  Rep.  455; 
82  Alb.  Law  Jour.  591),  it  was  held,  that  if  a  conductor  or  other  employe 
chargeable  with  care  and  prudence  in  looking  after  the  safety  of  passen- 
gers, had  notice  and  knowledge  of  danger  to  any  of  tliem  because  of  their 
having  an  unusual  and  iraproptr  package  in  the  rack  overhead  when 
seated  in  the  car,  the  company  is  chargeable  with  negligence  for  its  non- 
removal;  and  when  on  the  question  of  notice  the  evidence  is  conflict- 
lug,  the  case  is  properly  submitted  to  the  jury. 

The  cause  of  the  injury  was  the  falling  of  a  clothes-wringer  placed  by 
another  passenger  in  the  rack  over  plaintiff's  seat.     The  court  say: — 

"  The  wringer  was  wrapped  up  in  brown  paper,  more  or  less  conceal- 
ing its  real  character.  On  this  point  there  was  some  diversity,  perhaps 
conflict  of  proof.  The  plaintiff  totitled  that  he  noticed  the  parcel  tliat 
was  in  there  when  he  sat  down ;  that  he  could  see  that  the  ends  were  open, 
but  could  not  discover  what  it  was;  that  the  reason  he  could  not  tell 
what  the  packai:c  was,  wag  because  his  eyesight  was  so  short.  Tiie  de- 
lenilant's  witnesses  tesiifled  to  the  effect  that  the  package  was  so 
wrapped  up  that  an  observer  could  not  tell  or  see  what  it  was.  The 
learned  trial  judaic  ruled  that  there  was  no  evidence  upou  which  the  jury 
could  find  that  the  car  or  rack  was  insufficient;  also,  that  there  was  no 
negligence  on  the  part  of  the  defendant  in  receiving  the  wringer  in  the 
car,  or  in  permitting  it  to  be  put  in  the  rack,  or  in  allowing  it  to  remain 
there,  unless  the  appearance  of  the  package  conveyed  to  the  defendant's 
employes  implied  notice  of  its  character;  and  further,  that  the  conductor 
was  not  bound  to  examine  packages  placed  in  the  rack  to  see  that  tliey 
contained  nothing  dangerous  to  passengers,  from  falling  therefrom; 
bat  he  refused  to  non-suit  the  plaintiff,  and  submitted  the  case  to  the 
jory,  upon  the  question  whether  the  package,  as  done  up,  was  in  such 
shape,  as  under  the  circumstances,  should  have  attracted  the  attention 
of  the  defendant's  employes,  in  the  exercise  by  them  of  reasonable  care 
»nd  prudeuce  to  its  real  character;  and  charged  the  jury  that  if  this  was 


398  MORE  THAN  ORDINARY  CARE. 

[321]  gence  in  the  mere  fact  of  a  train  not  pulling  up  at 
a  platform,  provided  due  care  is  taken  that  no  injury  arises 

so,  then  that  they  should  have  seen  to  it  that  it  was  removed.  To 
the  refusal  to  non-suit,  and  to  such  ruling,  the  defendant's  counsel  ex- 
cepted. 

"  After  much  reflection  we  are  of  the  opinion  that  the  rulings  of  the 
court  were  sound.  In  effect  it  was  a  holding  and  an  instruction  to  the 
jury  that  if  the  conductor  or  other  employe  chari'eab'e  with  care  and 
prudence  in  looking  after  the  safety  of  passengers  had  notice  and  knowl- 
edge of  danger  to  any  of  them,  because  of  their  having  an  unusual  and 
improper  package  in  the  rack  overhead  when  seated  in  the  car,  the  de- 
fendant would  be  charged  with  negligence  for  its  non-removal. 

"Were  the  case  destitute  of  all  proof  on  the  subject,  it  would  be  quite 
different  from  what  it  is;  hit  there  was  proof  bearing  on  the  question 
submitted.  The  appearance  of  the  package,  how  wrapped  up,  its  qual- 
ities of  danger,  and  to  what  extent  they  were  concealed  from  observa- 
tion, were  subjects  as  to  which  witnesses  were  examined  and  gave  testi- 
mouy  proper  to  be  considered  and  weighed.  This  case  differs  from 
Dougan  v.  C.  T.  Co.,  56  N.  Y.  1,  to  which  we  are  cited  by  the  defendant's 
counsel.  There  the  question  was  whether  the  defendant  had  reason  to 
apprehend  the  danger  charged  as  ground  of  negligence.  It  was  held 
that  it  had  not,  hence  was  under  no  obligation  to  provide  against  the 
danger.  Not  so  here,  in  case  the  defendant  had  notice  or  knowledge  or 
on  the  proof,  should  be  held  to  notice  or  knowledge,  of  the  danger  im- 
pending over  the  passengers. 

"  The  case  of  Chrocheron  v.  N.  S.  S.  I.  F.  Co.,  56  N.  Y.  656,  is  similar 
in  principle  to  the  Dougan  case;  as  is  also  Cleveland  v.  N.  N.  J.  S.  Co., 
68  N.  Y.  306;  and  the  same  may  be  said  of  Loftus  v.  U.  F.  Co.,  84  N.  Y. 
455;  38  Am.  Rep.  533. 

"As  regards  the  case  of  Keeley  v.  E.  W.  R.  W.  Co.,  47  How.  256,  it 
will  hardly  be  contented  that  the  liability  of  the  defendant  for  the  injury 
would  have  been  in  doubt  if  it  had  been  proved  that  the  latter  had  been 
notifled  of  the  rai-^placed  switch,  and  had  omitted  to  put  it  in  place;  and 
so  also  in  Joy  v.  W.  Co.  114  Mass.  63,  in  case  the  company  had  been  held 
to  the  knowledge  that  the  guard-chain  was  down,  and  yet  had  made  no 
effort  to  prevent  the  too  hasty  egress  of  passengers  from  the  boat. 

"In  Carpenter  v.  B.  &  R.  Co.,  97  N.  Y.  494;  49  Am.  Rep.  540,  the 
doctrine  of  the  cases  above  referred  to  was  recognized  and  approved; 
but  the  defendant  was  held  responsible  on  the  ground  that  it  was  charge- 
able with  notice  of  the  danger,  yet  with  such  notice  it  omitted  to  take 
reasonable  and  proper  precaution  to  prevent  injury  therefrom.  So  in 
the  case  here  before  us,  if  the  defendant  was  chargeable  with  notice  of 
the  danger  which  impended  over  the  plaintiff,  and  permitted  its  contin- 
uance after  such  notice,  liability  for  the  injury  to  him  resulting  from  it 
must  follow  as  a  matter  of  l.iw,  so  be  it  that  he  was  himself  free  from 


USE    OF   TUAi.N    AM)    CARRIAGES. 


399 


from  it;  l)ut  if,  from  want  of  siu-li  cure,  or  if,  by  some 
action  of  tho  defcnthiuts  connected  with  such  stopping, 
the  phiintiff  is  led  into  danger,  the  defendants  are  liable 
for  negligence.  If,  in  fact,  the  stop[)ing  is  of  a  nii>lea<ling 
[322]  character  (c),  that  is  to  say,  of  such  a  character  as 
t«)  mislead  a  reasonable  person  (^/),  the  defendants  will  be 
liable.  This  may  depend  upon  how  long  the  train  stoj)s  (e)  ; 
whether  it  is  dark  or  light  {/);  whether  there  is  an  express 
or  implied  invitation  to  alight  (v)  ;  or  other  sueh  like  cir- 
cumstances. 

If  there  is  no  misleading — if,  lor  instance,  the  plaintiff 
exercises  his  own  discretion  in  the  matter,  and  in  broad 
daylight  chooses  to  jump  from  the  carriage  rather  than 
run  the  chance  of  being  carried  on,  or  the  trouble  of  insist- 
ing upon  the  train  backing,  then  the  company  are  not  lia- 
ble (h). 

It  should  seem  that  a  railway  company  is  not  bound  to 


(c)  As  to  the  effect  of  -putting  the 
plaintiff  off  his  guard,  see  the  judgnients 
in  D.  W.  A  W.  lly.  Co.  v.  Slattery,  L.  II. 
S  App.  Ca^.  1 155. 

(d)  Davey  v.  L.  &  S.  W.  Ky.  Co.,  12  Q. 
B.  D.  70. 

(e)  Cockle  v.  8.  E.  Ky.  Co.,  L.  It.  7  C. 
P.  821;  41  L.  J.  C.  V.  HO;  Urldgos  r.  L.  & 
X.  W.  Ry.  Co.,  L.  U.  7  II.  L.  215;  43  L.  J. 
g.  B.  131 ;  Wcller  i-.  L.  IJ.  &  S.  C.  Uy. 
Co.,  L.  R.  9  0.  P.  12G;  43  L.  J.  C.  P  137; 
Itobson  r.  N.  E.  Uy.  Co.,  L.  R.  2  Q.  B. 
D.  80;  46  L.  J.  Q.  n.  50;  Rose  v.  X.  E. 
iiy.  Co.,  L.  R.  2  Ex.  D.  248;  40  L.  J.  Ex. 
S(4;  N'lchols  r.  Gt.  Southern  Co.,  7  Ir.  C. 
L.40;  21  W.  K.387. 

(/)  Preogerr.  Bristol  &  Ex.  Ry.  Co., 
S4  L.  T.  IW;  Cockle  r.  S.  K.  Ry.  Co.. 
lupra;  Weller  v.  L.  B.  &  S.  C.  Ry.  Co., 
mtpra. 

(P)  Foy  r.  L.  B.  &  8.  C.  Ry.  Co..  18  C. 
B.  N.  8.  225.  (The  mere  calling  out  of 
the  name  is  not  of   Itself   a    sufficient 


invitation;  see  per  Lord  Ilatherly  In 
Bridges  v.  N.  L.  Uy.  Co.,  #i//»r<j,'  and  sec 
Lewis  I'.  L.  C.  &  I).  Ry.,  in/nt) ;  Woller  t;. 
L.  B.  &  S.  C.  Uy.  Co.,»«pr(i.  (In  this  case 
all  tlircc  clemcuts  calculated  tu  mislead 
were  present  —  U  was  dark,  llicro  was 
an  express  Invitation,  and  the  train 
stopped  for  a  reasonable  lliiie,  as  If  for 
alighting);  L  &  N.  W.  Ky.  Co.  r.  Ilulla- 
well,  26  L.  T.  N.  8.  5.57  (porters  called 
out  "all  out  for  lluddersflcld,"  and 
opened  doors,  held  negligence);  see, 
also.  Gill  V.  G.  E.  Uy.  Co.,  26  L.  T.  N.  S. 
945;  [see  ante,  p.  381]. 

(A)  SIner  r.  G.  W.  Uy.  Co.,  L.  U.  1  Ex. 
117;  38  L.  J.  Ex.  67  (see,  however,  the 
observation  of  Brett,  L.  J.,  In  Uobnon  e. 
N.  E.  Uy.  Co.,  on  tlic  it  hove  case) ;  Lewis 
r.  Loudon,  (.hatham  &  Dover  Co.,  L.  R. 
9Q.  B.  f^;43  L.  J.  Q.  B.  8  (names  willed 
out,  train  stopped  temporarily,  and  then 
backed,  station  well  known,  not  mis- 
leading). 


fault  in  the  matter.  On  the  questions  of  fact  above  suggested,  the  jury 
have  found  for  the  plaintiff,  and  as  we  think,  on  evidence  sufllcient  to 
make  it  proper  fur  the  jury  to  determine  them." 


400  MORE   THAN   ORDmARY   CARE, 

have  a  platform  as  long  as  any  of  its  trains,  but  is  only 
bound  to  do  what  is  reasonable  in  that  respect  (i). 

Akin  to  the  question  of  negligence,  in  overshooting  the 
platform,  is  that  of  opening  and  shutting  of  doors;  and 
acjain  the  main  question  is,  whether  the  plaintiff  has  been 
misled  or  not.  If,  from  the  position  of  affairs  induced  by 
the  defendants,  the  plaintiff  could  reasonably  suppose  that 
[323]  he  could  safely  descend  from,  or  ascend  to  the  car- 
riage, or  place  his  hand  between  the  door-jamb,  then  the 
defendants  have  been  guilty  of  negligence.  Here  again, 
also,  the  circumstances  decide  the  question,  as,  for  instance, 
was  it  dark  at  the  time  (k),  had  the  passenger  fairly  entered 
the  carriage  before  the  door  was  shut  (I)  or  not  (m). 
Thus,  also,  it  is  misleading  for  the  company  not  to  keep 
the  carriage  doors  properly  fastened  whilst  the  train  is  in 
motion  (n),  or,  it  seems,  when  standing  still  (o).  In  one 
case,  where  the  door  of  a  carriage  flew  open  three  times, 
and  the  plaintiff,  in  trying  to  shut  it  the  fourth  time,  fell 
out  and  was  injured,  it  was  held  that  the  company  were 
not  liable,  for  that,  although  they  were  negligent,  the 
damaore  was  not  the  necessarv  or  natural  result  of  such  nes;- 
ligence,  but  that  the  plaintiff,  to  whom  the  inconvenience 
of  the  open  door  was  slight  (as  the  train  would  stop  in 
three  minutes),  and  the  danger  of  trying  to  close  it  great, 
had  by  his  own  act  contributed  to  the  accident.  Brett,  J., 
seemed  reluctantly  to  acquiesce  in  this  decision,  and  re- 
marked upon  it  in  Gee  v.  Metropolitan  Railway  Co.,  si^pm. 
This  case  seems  fairly  to  illustrate  the  diflSculty  of  deciding, 
[324]     as  a  matter  of  fact,  whether  there  is  negligence  or 


(i)  See  per  Lush,  J.,  Owen  v.  Gt.  W.  twelve  years  of  age);  Jackson  v.  Met. 

Ity.  Co.  46  L.  J.  Q.  B.  486;  [see  ante,  pp.  Ry.  Co.,  ante. 
393, 394].  (m)  Fordham  v.  L.  B.  &  S.  C.  Ry.  Co., 

(k)  Fordham  v.  L.  B.  &  S.  C.  Ry.  Co.,  supra. 
L.  R.  4  C.  r.  619;  38  L.  J.  C.  P.  .324.  (n)  Gee  v.  Met.  Ry.  Co.,  L,  R.  8  Q.  B. 

(0  Richardson  v.  Met.  Ry.  Co.,  37  L.  161;  42  L.  J.  Q.  B.  105. 
J.C.  P.  176;Maddoxv.L.C.&D.  Ry.  Co.,  (o)  Richards  i;.  Gt.  E.  Ry.  Co.,28L.  T. 

38  L.  T.  N.  8.  4.'j8  C.  P.  R  ;  but  see  Cole-  711. 
man  v.  S.  E.  Ry.,  4  U.  &  C.  699  (boy  of 


SLEEriNO   CAR    COMPANIEIS.  401 

not.  Ono  would  havo  thoun^ht  that  tho  danger  of  leavinj]^ 
a  door  [•^-•'>]  f>f  'i  ti^iin  open  was  very  great,  and  tho 
danger  of  trying  to  clotie  it  very  small  (/)). 

(j))  Adams  f.  L.  &  Y.  Uy.  Co.,  L.  U.  4  O.  P.  739;  38  L.  J.  C.  P.  277. 

Where  plaintiff  who  pat  near  the  front  door  of  a  dark  crowded  car  on 
the  defendant's  railway  attempted  to  shut  the  door  when  passing; 
through  a  tunnel  to  keep  out  the  smoke  and  ashes,  and  was  injured,  the 
company  was  held  liable,  it  not  bavins  provided  servants  for  tliat  pur- 
pose.—Western,  etc.,  R.  Co,  V.  Stanley,  CI  Md.  2GG;  48  Am.  Hep.  "Jtl. 

Whc<"e  plalutiff' 3  hand  was  crushed  by  placinj^  it  on  the  frame-work 
ol  defendant's  door,  it  was  held  error  to  give  a  charfjo  which  in  effect 
asserted  that  it  was  negligence  for  the  porter  on  a  railway  train  to  close 
the  doors  of  the  company's  cars  without  giving  warning  of  his  intention 
to  do  so  in  advance.  —  G.  IT.  &  S.  N.  Ry.  Co.  v.  Davidson,  r.I  Tex.  204. 

OrtHnarWy,  where  a  passenger's  hand  is  crushed  in  a  car  door-jamb 
the  carrier  is  not  liable,  since  it  is  not  the  duty  of  his  servants  to  see 
that  passengers  exercise  proper  care  (Murphy  i'.  Atlantic  &  W.  V.  R.  Co., 
89  Ga.  8?.2;  15  S.  E.  Rep.  774;  Texas  &  P.  Co.  v.  Overall,  82  Tex.  247;  18 
S.  W.  Rep.  142) ;  but  if  the  immediate  cause  of  such  injury  is  the  violent 
starting  of  the  train  the  carrier  is  liable.  —  Kentacky  &  I.  B.  Co.  r. 
Quinkert,  2  Ind.  App.  244;  28  N.  E.  Rep.  3.S8. 

Sleeping  Car  Companies. —  It  has  been  settled  that  sleeping  car  com- 
panies arc  not  common  carriers,  that  they  are  not  liable  in  the  same 
manner  as  innkeepers,  and  that  they  are  not  responsible  for  the  loss  of 
articles  in  the  personal  custody  of  the  passenger  unless  negligence  on 
their  part  is  shown. 

It  has  been  said  that  the  decisions  do  not  contain  satisfactory  reasons 
for  the  distinction  now  recognized  between  railroad  and  sleejiing  car 
companies  as  to  the  measure  of  their  liability,  but  it  cannot  be  said  that 
there  are  not  sufficient  reasons  for  the  distinction  made  between  these 
companies  and  innkeepers,  and  when  it  is  considered  that  the  passenger 
of  the  sleeping  car  company  can  hold  the  railroad  company  1o  strict 
accountability  in  its  capacity  of  common  carrier,  the  question  as  to 
whether  the  sleeping  car  company  is  a  common  carrier  becomes  imma- 
terial.    See  John  D.  Lawson's  article  in  40  C.  L.  J.  448. 

Not  Common  Carriers. —  That  sleeping  cars  are  not  common  carriers 
has  been  estabHshed  by  the  following  authorities:  Blum  v.  Southern 
Pullman  Palace  Car  Co.,  U.  S.  C.  C.  Tenn.,  1  Flip.  C.  C.  5i)0;  3  C.  L.  J. 
691;  Pullman  Palace  Car  Co.  v.  Smith,  73  111.  SCO;  16  Am.  Law.  Reg. 
95;  Diehl  r.  Woodruff,  84  Ind.  474;  10  C.  L.  J.  CC;  Welsh  r.  Pullman 
Palace  Car  Co.,  Ifi  Abb.  Pr.  N.  S.  2r>2 ;  Pullman  Palace  Car  Co.  r.  Gay- 
lord,  Superior  Court  of  Ky.,  23  Am.  Law  Reg.  788;  Palmeter  v.  Wagner, 
Marine  Court  of  New  York,  11  Albany  Law  Journal,  14I»;  Thompson's 
Carriers  Pass.  530;  Lawson  Bail.,  §  r.25;  Hutchinson  on  Carriers,  45-47, 

26 


402  MORE   THAN    ORDINARY   CARE. 

[326]     Upon  the  other  hand,  where  the  defendants  have 
done  nothing  to  mislead  the  plaintiff,  but  he  chooses  of  his 

note;  Scaling  v.  Pullman's  Palace  Car  Co.,  24  Mo.  App.  29;  Lemon  v. 
Pullman  Palace  Car  Co.,  62  Fed.  Rep.  262. 

In  the  case  of  Pullman  Palace  Car  Co.  v.  Freudenstein  (3  Colo.  App. 
540;  34  Pac.  Rep.  578),  distinctions  between  railroad  companies  and 
sleeping  car  companies  are  pointed  out,  as  follows :  "  The  possession  of 
the  Pullman  Company  is  practically  as  exclusive  as  that  either  of  the 
innkeeper  or  the  carrier.  In  either  case  the  risk  of  dishonest  guests  is 
always  an  element  of  danger,  which  cannot  be  eliminated.  No  person 
has  access  to  the  cars  except  the  Pullman  servants  and  the  railroad 
employes.  It  is  no  substantial  enlargement  of  the  risk  to  hold  the  Pull- 
man Company  as  grantors  for  the  honesty  of  these  employes.  *  *  * 
Eliminating  these  features,  the  company  does  practically  have  possession 
of  the  traveler's  goods.  There  may  not  be  the  formal  delivery,  but  the 
exclusive  possession  which  ordinarily  exempts  the  railroad  company  from 
liability  for  lost  baggage  is  not  retained  by  the  traveler.  Of  course,  it 
is  conceded  that  if  the  passenger  by  coach  leaves  his  coat  on  the  seat, 
and  it  be  lost,  the  railroad  company  cannot  be  compelled  to  pay  for  it. 
They  never  had  any  possession  on  which  liability  could  be  predicated. 
No  such  condition  exists  in  a  Pullman  car.  There  the  company  has 
possession,  a  possession  not  at  all  similar  to  that  which  is  called  con- 
structive. *  *  *  The  only  question  is  whether  the  loss  alone  is 
sufficient  to  fix  the  responsibility.      The  authorities  hold  otherwise." 

Nor  Innkeepers. —  Nor  is  their  liability  the  same  as  that  of  inn- 
keepers.—  Blum  V.  Southern  Palace  Car  Co. ;  Pullman  Palace  Car  Co.  v. 
Smith,  73  111.  360;  Diehl  v.  Woodruff,  84  Ind.  474,  and  cases  above  cited. 
The  distinction  between  these  companies  and  innkeepers  is  well  illus- 
trated in  Blum  v.  Pullman  Palace  Car  Company  in  the  following: — 

1.  "  The  peculiar  construction  of  sleeping  cars  is  such  as  to  render  it 
almost  impossible  for  the  company,  even  with  the  most  careful  watch,  to 
protect  the  occupants  of  berths  from  being  plundered  by  the  occu- 
pants of  adjoining  sections.  All  the  berths  open  upon  a  common  aisle, 
and  are  secured  only  by  a  curtain,  behind  which  a  hand  maybe  slipped 
from  an  adjoining  or  lower  berth,  with  scarcely  a  possibility  of  detection. 

2.  "  As  a  compensation  for  his  extraordinary  liability,  the  innkeeper 
has  a  lien  upon  the  goods  of  his  guests  for  the  price  of  their  entertain- 
ment. I  know  of  no  instance  where  the  proprietor  of  a  sleeping  car  has 
ever  asserted  such  a  lien,  and  it  is  presumed  that  none  such  exists.  The 
fact  that  he  is  paid  in  advance,  does  not  weaken  the  argument,  as  inn- 
keepers are  also  entitled  to  pre-payment. 

3.  "  The  innkeeper  is  obliged  to  receive  any  guest  who  applies  for 
entertainment.  The  sleeping  car  receives  only  first-class  passengers 
traveling  upon  that  particular  road,  and  it  has  not  yet  been  decided  that 
it  has  been  bound  to  receive  those. 


SLEEPING    CAU   COMPANIES.  403 

<i\vn     [327]     niotiou  to  put  himself  in   danger,  of  cour»o 
the  negligence  is  his  own  (y). 

(g)  See  Mot.  Uy.  Co.  r.  Jackson,  I..  11.  soo  post,  Ch.  V.,  Conlrllmtory  NcgU- 
3  App.  Cm.  193;  47  L.  J.  C.  1'.  Hii;  and       genco. 

4.  "The  innkeeper  is  obliged  to  furnish  food  as  well  as  lodging,  and 
to  receive  and  care  for  the  goods  of  his  guests." 

The  sleeping  car  furnishes  a  bed  only,  and  that,  too,  usually  for  a  sin- 
gle night.  It  furnishes  no  food  and  receives  no  luggage  in  the  ordinary 
sense  of  the  term.  The  coQveoiences  of  the  toilet  are  simply  an  incident 
to  the  lodging. 

5.  "  The  convenience  of  a  public  inn  are  an  imperative  necessity  to 
the  traveler,  who  must  otherwise  depend  on  private  hospitality  for  his 
accommodation,  notoriously  an  uncertain  reliance.  The  traveler  by  rail, 
however,  is  under  no  obligation  to  take  a  sleeping  car.  The  railway  offers 
him  an  ordinary  coach,  and  cares  for  his  goods  and  effects  in  a  van 
especially  provided  for  that  purpose. 

G.  "  The  innkeeper  may  exclude  from  his  house  every  one  but  his  own 
servant  and  guest.  The  sleeping  car  is  obliged  to  admit  the  employes  of 
the  train  to  collect  fares  and  control  its  movements. 

7.  "  The  sleeping  car  can  not  even  protect  its  guests,  for  the  conduc- 
tor of  the  train  has  the  right  to  put  them  off  for  non-payment  of  fare,  or 
violation  of  its  rules  and  regulations." 

While  these  distinctions  are  concisely  and  learnedly  drawn,  yet  certain 
services  rendered  by  sleeping  car  companies  are  similar  to  those  of  inn- 
keepers. Thus,  in  the  case  of  Pullmau  Palace  Car  Co.  v.  Lowe,  28  Neb. 
l'3'J;  44  N.  W.  Rep.  -'-())»  the  court,  in  referring  to  the  general  duties'of 
such  a  company,  said:  "It  undertakes  (1)  to  furnish  accommodations 
to  flrst-class  passengers  exclusively;  (2)  to  furnish  toilet  accommoda- 
tions to  such  passengers;  (,3)  to  furnish  a  certain  specified  seat  or  bed 
to  such  passenger;  (4)  to  furnish  a  servant  who  will  respond  to  all 
proper  demands  on  his  service  by  such  passengers,  promptly  and 
(•olitely;  but  to  do  these  four  things  for  a  limited  time,  which 
18  agreed  upon  between  it  and  each  passenger  in  advance.  •  ♦  * 
So  far  as  such  services  are  rendered,  they  are  the  same  In  kind 
as  those  furnished  by  an  innkeeper;  and  the  security  of  travelers, 
and  as  the  means  of  protecting  them,  not  only  against  the  negligence, 
but  also  against  the  dishonest  practice  of  the  ageut-*  or  employes  of  the 
sleeping  car  company,  requires  that  the  company,  so  far  as  it  renders 
service  as  au  innkeeper,  shall  be  subject  to  like  liabilities  and  obliga- 
tions." 

Liability  for  Loss  of  Property. —  The  sleeping  car  company  Is  held  liable 
lor  the  want  of  reasonable  care  in  the  protection  of  the  property  of 
guests.  —  13  Alb.  L.  J.  221  ;   I'J  Am.  Rep.  458  n. 

"  A  sleeping  car  company  holds  Itself  out  to  the  world  as  furnishing 


404  MORE   THAN   ORDlNAllY    CARE. 

[328]  The  mepe  fact  of  a  window  slipping  down  is  no 
evidence  of  negligence,  as  it  seems  (r). 

(?)  Murray  v.  Met.  District  Ey.  Co.,  27  L.  T.  762. 

safe  aud  comfortable  cars;  and,  when  it  sells  a  ticket,  it  impliedly  stip- 
ulates to  do  so.  It  invites  passengers  to  pay  for  and  make  use  of  its 
cars  for  sleeping;  all  parties  knowing  that,  during  the  greater  part  of 
the  night,  the  passenger  will  be  asleep,  powerless  to  protect  himself  or 
to  guard  his  property.  He  cannot,  like  the  guest  of  an  inn,  by  locking 
the  door,  guard  against  danger.  He  has  no  right  to  take  any  such  steps 
to  protect  himself  in  a  sleeping  car,  but,  by  the  necessity  of  the  case,  is 
dependent  upon  the  owners  and  officers  of  the  car  to  guard  him  from 
danger  from  thieves  or  otherwise."  —  Lewis  v.  New  York  C.  S.  C. 
Co.,   143  Mass.  267;  9  N.  E.  Rep.  615;  28  Am.  &  Eng.  R.  Cas.  160. 

In  Stevenson  v.  Pullman  Palace  Car  Co.  (Tex.  Civ.  App.),  26  S.  W. 
Rep.  112),  the  court  said:  "  The  mere  fact  that  appellant  was  a  passen- 
ger in  the  coach  of  appellee  fixed  upon  appellee  the  duty  to  use  reason- 
able care  to  guard  his  property  from  theft,  and  this  duty  could  not  be 
evaded  by  any  words  printed  on  the  check  given  the  passenger,  or  being 
posted  up  in  the  cars."  Thus,  the  sleeping  car  company  is  responsible 
for  money  stolen  by  the  porter  (Pullman  Palace  Car  Co.  v.  Gaviu,  93 
Tenn.  53;  23  S.  W.  Rep.  70) ;  or  where  plaintiff's  satchel,  placed  betweea 
herself  and  the  wall  of  the  car,  is  stolen  (Pullman's  Palace  Car  Co.  v. 
Martin,  92  Ga.  161;  18  S.  E.  Rep.  364);  or  where  a  passenger  placed  in 
the  vacant  berth  above  him  articles  which  are  stolen  therefrom. —  Florida 
V.  Pullman  Palace  Car  Co.,  37  Mo.  App.  598.  See  Carpenter  v.  New 
York,  etc.,  R.  Co.,  134  N.  Y.  53;  26  N.  E.  Rep.  277. 

So,  where  the  plaintiff  placed  his  valise  on  the  floor  of  the  smoking 
room  while  he  went  out,  leaving  the  conductor  and  porter  in  the  car,  and 
upon  returning  failed  to  find  it  he  can  recover  from  the  company  for 
such  personal  effects  as  he  was  reasonably  expected  to  carry  with  him.— 
Pullman  Palace  Car  Co.  v.  Pollock,  69  Tex.  120;  5  S.  W.  Rep.  815. 

"  The  settled  law  is,  that  a  sleeping  car  company  is  not  an  insurer  of 
the  baggage  of  the  passenger,  but  that  its  liability,  at  most,  is  that  of  a 
bailee  for  hire.  In  the  case  of  a  loss  of  the  passenger's  baggage  or  be- 
longings it  is,  therefore,  liable,  if  at  all,  only  on  the  ground  of  negligence; 
and,  in  order  to  be  so  liable,  it«must  have  been  negligent  in  the  per- 
formance of  some  duty  which  it  assumed  to  perform  for  the  passenger. 
That  duty,  so  far  as  adjudged  cases  seem  to  have  gone,  is,  that  it  will 
maintain  in  the  car  a  reasonable  watch  during  the  night  while  the 
passenger  is  asleep.  Now  we  go  further,  and,  speaking  with  reference 
to  the  facts  of  this  case,  we  hold  that  the  duty  of  keeping  watch  does 
not  terminate  with  the  period  during  which  the  passenger  is  actually 
asleep,  but  that  it  extends  to  keeping  a  reasonable  watch  over  such  nec- 
essary baggage  and  belongings  as  he  cannot  conveniently  take  with  him 


8LEEPINO    CAR    COMPANIES.  405 

[329]  It  is  veiy  (loul)tfiil  whether  not  whistlin*:^  before 
coniinpf  to  a  station  where  persons  are  in  the  habit  of  cross- 

nor  watch  liimsell  while  he  is  absent  from  his  berth  in  the  woshinK-roora, 
preparing  fiis  toilet  after  arising  In  the  morning.  This  duty  of  watch- 
fulness extends  so  far  as  to  make  the  sleeping  car  company  liable  for  a 
negligent  failnre  to  perform,  to  the  extent  of  any  baggage  or  personal 
belongings  which  the  passenger  may  thereby  lose,  which  are  reasonably 
nt'cessary  to  be  taken  by  him  on  bis  journey,  regard  being  had  to  his 
station  in  life,  and  to  the  length,  purposes,  and  probable  duration  of  the 
journey."— Judge  Thompson  in  Root  v.  New  York  C.  S.  C.  Co.,  28  Mo. 
App.  205.  Again,  In  the  same  case:  "  Beyond  the  amount  of  baggage  or 
money  which  It  is  reasonably  necessary  for  the  traveler  to  take  with  him, 
the  sleeping  car  company  assumes  no  duty  of  watchfulness,  and  is 
under  no  liability,  in  the  case  of  loss  or  theft.  It  Is  not  even  a  gratuitous 
bailee  in  respect  of  such  excess  of  money  or  baggage,  nor  is  its  position 
even  that  of  a  warehouseman."  Citing  N.Y.  C.  &II.  U.  U.  Co.r.  Frnloff, 
10  Otto,  24;  Merrill  v.  Greenville,  30  N.  Y.  594 ;  Parraalet;  v.  Fi-nher,  22  111. 
212;  Dibljle  ?;.  lirown,  12  Ga.  217;  Brock  v.  Gale,  U  Fla.  52.3;  Johnson 
r.  Stone,  11  Humph.  419.  Sec  Hampton  '.  The  Pullman  Palace  Car  Co., 
42  Mo.  App.  134;  Barrott  v.  Pullman  Palace  Car  Co.,  51  Fed.  Kep.  797; 
Pullman  Palace  Car  Co.  v.  Matthews,  74  Tex.  (554;  12  S.  W.  Kep.  744. 

•♦  In  case  of  loss  for  which  these  companies  are  responsible,"  says 
Judge  Thompson,  "  the  measure  of  liability  Is  the  same  as  that  of  common 
carriers  under  similar  circum.'^tancefl,  It  includes  only  such  property  as 
the  passenger  may  reasonably  be  supposed  to  carry  about  his  person." 
Thompson's  Carriers  of  Passengers,  532.  And  the  measure  of  a  common 
carrier's  liability  is  stated  by  Gray,  C.  J.,  in  Kinsley  v.  R:illroad  Co.,  125 
Ma.ss.  56.  "  Although  a  railroad  corporation  is  not  responsible  as  a  com- 
mon carrier  for  an  article  of  personal  baggage  kept  by  a  passenger  ex- 
clusively within  his  own  control,  it  is  liable  for  the  loss  of  such  an  article 
by  the  negligence  of  such  corporation,  or  Its  agents,  or  servants,  and 
without  the  fault  of  the  passenger." 

The  following  cases  Illustrate  the  principles  here  laid  down.  In  Blnm 
V,  Southern,  etc.,  Car  Company,  mipra,  the  court  held  the  company  was 
not  liable,  either  as  innkeeper  or  common  carrier,  for  money  stolen  from 
a  passenger's  pocket,  and  said  it  must  not  only  furnish  a  berth  to  Its 
iniests,  but  keep  a  watch  during  the  night,  exclmle  unaulhorixed  persons 
from  the  car  and  take  reasonable  care  for  preventing  thefts.  If  loss 
shoQld  occur  by  reason  of  negligence  in  this  regard,  the  company  Is 
responsible  for  such  articles  a.s  are  usually  carried  about  his  per.non,  and 
«nch  as  may  be  deemed  reasonable  and  necessary  for  traveling  expenses. 

In  Pullman  Palace  Car  Co.  v.  Smith  (73  111.  300),  Smith  brought  his 
action  against  the  company  for  31,180,  claimed  to  have  been  lost  while  a 
passenger.  The  money  was  in  an  inside  vest  pocket,  and  when  he  retired 
to  his  berth  the  vest  was  placed  under  his  pillow,  and  in  the  morning  he 


406  MORE   THAN    ORDINARY   CARE. 

ing  on  [330]  the  level  would  be  evidence  of  negligence 
(s),  but  it  rather  seems  that  the  duty  of  whistling  is  to  be 

(s)  Dublin  W.  &  W.  Ey.  Co.  v.  Slattery,  L.  R.  3  App.  Cas.  UGi.per  Lord  Cairns. 

found  the  vest  as  he  had  left  it,  but  the  money  was  gone.  There  was  no 
proof  of  negligence  on  the  part  of  the  company.  The  court  instructed 
the  jury  that  if  they  believed  from  the  evidence  that  the  plaintiff  had  been 
robbed  while  traveling  on  defendant's  car,  they  should  find  for  him  for 
the  amount,  unless  it  was  greater  than  would  be  a  reasonable  sum  for 
a  traveler  to  carry  on  his  journey.  The  jury  returned  a  verdict  for 
plaintiff  for  ^277.    The  court  reversing  judgment  on  this  verdict  said:— 

"  It  would  be  unreasonable  to  make  the  company  responsible  for  the 
loss  of  money  which  was  never  intrusted  to  its  custody  at  all,  of  which  it 
had  no  information,  and  which  the  owner  had  concealed  on  his  own  per- 
son. The  exposure  to  the  hazard  of  liability  for  losses  by  collusion  for 
pretended  claims  of  loss,  where  there  would  be  no  means  of  disproof, 
would  make  the  responsibility  claimed  a  fearful  one.  Appellee  assumed 
the  exclusive  custody  of  his  money,  adopted  his  own  measures  for  its 
safe-keeping  by  himself,  and,  we  think,  his  must  be  the  responsibility 
for  its  loss." 

But  where  there  is  negligence  on  the  part  of  the  company,  liability 
attaches.  In  Diehl  v.  Woodruff,  supra,  the  plaintiff  sued  for  the  loss  ol 
a  watch  valued  at  $172,  a  chain  valued  at  $50,  and  $111.50  in  money, 
claimed  to  have  been  stolen  from  him  while  traveling  in  defendant's 
sleeping  car  and  got  a  judgment  for  .$396.  The  court  affirmed  the  judg- 
ment of  the  lower  court,  saying:  "The  evidence  showed  pretty  con- 
clusively that  plaintiff's  watch  and  chain  and  money  were  stolen  by  an 
occupant  of  the  same  car  in  the  night,  and  during  sleeping  hours.  The 
only  employes  of  def  en  dant,  about  the  car  at  any  time,  were  the  conductor 
and  porter;  for  a  distance  of  84  miles  the  conductor  was  absent,  having 
left  the  train  altogether,  leaving  no  one  about  the  car  but  the  porter,  who 
was  engaged  chiefly  in  blacking  boots  in  a  room  in  the  rear  end  of  the 
car.  It  seems,  in  fact,  that  it  was  no  part  of  the  porter's  duties  to  pro- 
tect the  passenger  against  thieves,  so  that  during  the  conductor's  ab- 
sence, the  sleeping  car  must  have  been  a  sort  of  paradise  for  pickpockets, 
to  prowl  about  in  at  pleasure." 

An  1  so  in  Pullman  Palace  Car  Co.  v.  Gardner  (Pa.),  17  Rep.  24,  it 
was  held  that  if  a  passenger  on  a  sleeping  car  is  robbed  while  asleep, 
and  through  the  negligent  manner  in  which  watch  has  been  kept  by 
the  company's  employes,  the  company  is  liable.  The  court  say:  "Con- 
ceding that  the  company  is  not  liable  in  this  action  as  an  innkeeper 
or  common  carrier,  yet  a  reasonable  and  proper  degree  of  care  is  im- 
posed on  the  company.  Whether  it  did  exercise  that  degree  of  care  under 
the  circumstances,  was  for  the  jury.  The  main  object  in  taking  passage 
on  such  a  car,  is  to  permit  the  passenger  to  sleep.    While  in  that  helpless 


SLEEPING    CAR   COMPANIES.  407 

infi'rrcd  or  not  inferred  from  the  circumstanco  of  the 
case  (l). 

(I)  Davey  v.  L.  A  8.  W.  Ry.  Co.,  12  Q.  genco ;  see  Gray  v.  N.  E.  Ry.  Co.,  48  L. 
B.  D.  70;   Ch.    V.,   Contributory  Negll-      T.  N.  8.  p.  904. 

condition  a  duly  rests  upon  the  company  to  provide  reasonable  care  and 
precaution  against  the  valuables  of  a  passcnj^er  being  stolen,  from  his 
bed,  or  from  the  clothes  on  his  person.  This  is  not  the  case  of  a  robbery 
by  force  and  violence,  but  by  stealthy  larceny.  Unless  a  watchman  be 
kept  constantly  in  view  of  the  center  aisle  of  the  car,  larceny  from  a  sleep- 
iujj  passenger  may  be  committed  without  the  thief  being  detected  in  the 
act." 

On  the  other  hand,  in  a  late  case  the  facts  were,  in  substance:  plaintiff 
and  his  little  boy  were  occupying  an  upper  berth  and  plaintiff's  wife  and 
little  girl  the  lower  berth  in  the  same  section.  At  about  5  :I50  o'clock  in  the 
moruiug  plaintiff  got  up  and  went  to  the  water  closet,  leaving  under  his 
pillow  his  pocket  book  containing  about  SG75.00,  which  he  was  carrying 
in  addition  to  sufficient  money  for  all  traveling  expenses.  He  observed 
the  negro  porter  and  another  person  seated  opposite  his  section.  Soon 
after  his  return  to  his  berth  he  discovered  that  his  pocket  book  was  mis- 
sing. Held,  that  he  could  not  recover  for  its  loss. —  Wilson  v.  B.  & 
0.  Uy.  Co.,  32  Mo.  App.  G8li,  following  Root  v.  New  York  C.  S.  C.  Co., 
Bupra. 

In  the  case  of  Pullman  Palace  Car  Co.  v.  Gaylord  (Kentucky), 
23  Am.  Law  Reg.  288),  Gaylord  sued  to  recover  3300,  the  value  of 
a  diamond  scarf  pin,  alleged  to  have  been  stolen  from  him  dur- 
ing the  night  on  the  company's  sleeping  car,  and  which  he  placed, 
when  disrobing  himself,  in  the  receptacle,  at  or  near  the  end  of  his 
berth.  There  was  no  allegation  that  the  loss  was  occasioned  by 
the  negligence  of  defendant.  Plaintiff  recovered  judgment.  In  revers- 
ing judgment  the  court  referred,  among  other  cases,  to  Clark  v. 
Burns  (118  Mass.  275),  and  Steamboat  Crystal  Palace  u.  Vanderpool  (lii 
B.  Mon.  307).  In  Clark  v.  Burns,  the  action  was  for  the  loss  of  a  watch 
by  plaintiff  while  occupying  a  stateroom  of  defendant's  steamboat.  The 
plaintiff,  on  retiring,  had  put  his  watch  in  his  waistcoat  pocket,  which  he 
hung  by  the  arm-holes  on  a  hook  in  the  stateroom.  When  he  arose  in  the 
morning,  he  found  his  watch  missing.  The  court  held,  he  could  not  re- 
cover, saying,  that  a  watch  worn  by  a  passenger  on  his  person  by  day, 
and  kept  by  him  within  reach  for  use  at  night,  whether  retained  upon  his 
person  or  placed  under  his  pillow,  or  in  a  pocket  of  his  clothing  banging 
near  him,  is  not  so  intrusted  to  their  custody  and  control,  as  to  make 
them  liable  for  It  as  common  carriers.  Steamboat  Crystal  i>.  Vanderpool 
Is  to  the  same  effect.  The  court  in  Pullman  Palace  Car  Co.  v.  Gaylord 
then  says:  "The  resemblance  of  a  steamboat  to  an  Inn  Is  even  greater 
than  of  a  sleeping  car,   since  it   is  customary   for  Ih  j  former  to  provide 


•408  MOKE   THAN   ORDINARY    CARE. 

[331]  As  to  not  fencing  level  crossing  for  the  protection 
of  cattle,  see  Owners  of  Eeal  Property,  Ch.  II.,  s.  2,  and 

meals  for  its  passengers.  If  the  rigid  liability  of  the  innkeeper  is  not 
to  be  extended  to  the  owners  of  steamboats,  common  justice  demands 
that  it  be  not  applied  to  the  owners  of  sleeping  cars.  And  we  iind  this 
rule  has  been  followed  so  far  as  the  reponsibilities  of  the  latter  have 
been  the  subject  of  judicial  inquiry." 

In  Tracy  v.  Pullman  Palace  Car  Co.  (67  How.  Pr.  Rep.  154),  the  plaintiff 
became  entitled  to  a  berth  in  a  car  of  the  defendant.  He  put  his  wallet 
in  the  pocket  of  his  waistcoat,  which  he  rolled  up  and  placed  under  the 
pillow.  Upon  waking  in  the  morning  he  found  his  wallet  gone.  The 
only  evidence  bearing  upon  the  loss  was  thut  the  wallet  was  there  when 
he  went  to  sleep  and  gone  when  he  awoke  in  the  morning.  The  referee 
who  decided  the  case  held  that  the  above  facts  did  not  establish  negli- 
gence on  the  part  of  the  company.  "  While  it  may  be  conceded  that 
these  sleeping  car  companies  owe  gror^  ter  duties  to  their  customers  than 
ordinary  railroad  carriers  of  passengers,  still  they  can  only  be  held 
liable  for  property  lost  while  under  the  control  of  the  passenger  upon 
proof  of  some  fault  or  negligence  on  their  part ;  and  from  the  mere  fact 
of  such  loss,  unaccompanied  by  any  other  proof,  no  presumption  of 
negligence  arises." 

Liability  for  Injuries  to  the  Person. —  "While  it  has  been  held  that  a 
sleeping  car  company  is  not  liable  as  an  innkeeper,  and,  it  would  seem, 
therefore,  not  bound  to  furnish  accommodation  for  every  passenger,  yet, 
having  sold  the  passenger  a  ticket,  the  company  is  bound  to  furnish  the 
accommodations  called  for  by  it. 

In  Pullman  Palace  Car  Co.  v.  Taylor  (65  Ind.  153),  appellee  purchased 
a  ticket  or  check  for  a  certain  lower  berth  on  a  sleeping  car  of  appellant, 
from  Indianapolis  to  New  York.  While  en  route  the  car  was  detached 
from  the  train,  and  appellee  was  compelled  to  take  an  inferior  berth  iu 
another  car.  The  court,  in  aflBrming  the  judgment  below  in  an  action 
for  damages,  said,  the  contract  made  imposed  upon  the  appellant  the 
obligation  to  furnish  sleeping  car  accommodations  for  a  continuous  trip, 
from  one  point  to  another,  so  that  appellee  could  go  on  with  a  continu- 
ous train,  as  he  might  be  bound  to  do  on  the  purchase  of  an  ordinary 
railroad  ticket,  without  provision  for  stopping  off.  The  appellant  was 
bound  by  the  contract  evidenced  by  the  check,  not  merely  to  furnish 
sleeping  car  accommodations,  but  to  furnish  the  particular  berth  in  an- 
other car,  of  equal  safety,  convenience  and  comfort. 

And  it  has  been  held  that  an  action  may  be  brought  in  form  ex  delicto 
for  excluding  a  passenger  from  a  berth  which  the  company  has  assigned 
him,  and  which  he  has  offered  to  pay  for. —  Nevin  v.  Pullman  Palace  Car 
Co.,  lOG  111.  222. 

But  where  through  mistake  the  conductor  sells  to  a  passenger  a  berth 
already  reserved  but  notifies  the  passenger  of  the  error  immediately  upon 


SLEEIUNU    CAR   COMPANIKS.  409 

as  to  lovcl  crossings,  as  respects  passenfjjers  crossing,  see 
Owners  of  Real  Property,  Ch.  III.,  s.  2. 

discoveriDg  it  and  tenders  another  berth  just  as  good  as  that  Urst  pohl, 
the  passenger  has  no  cause  of  action. —  Mann  IJoudoir  Car  Co.,  54  Fed. 
Rep.  titf,. 

Hut  the  damages  sought  to  be  recovered  for  the  negligence  of  the 
company  it  Is  held  mu^^t  be  the  immediate  cunsequ«'nce  of  nuch  negli- 
gence, and  not  too  remote.  In  Pullman  Palace  Car  Co.  ?'.  Barl<er  (4 
Col.  334)  owing  to  defeudant's  negliguucc,  their  sleeping  rur,  on  which 
a  woman  was  a  passenger,  caught  lire,  and  slie  was  compelled  to  leave 
the  car  half  clad,  and  took  cold,  wliich  resulted  in  the  suppression  of 
her  menses  and  a  long  illness.  It  being  shown  that  she  was  menstrua- 
ting at  the  time  of  the  accident,  and  that  the  Illness  was  traceable  to 
that  condition,  it  was  held  that  defendant  was  not  liable  in  damages 
therefor.  The  case,  however,  is  of  doubtful  authority.  See  Proximate 
Cause,  ante,  p.  :31. 

It  has  been  held  that  the  company,  having  no  control  over  the  move- 
ments or  making  up  of  the  train,  is  not  responsible  to  a  passenger  holding 
a  berth  in  its  car,  for  a  detention  growing  out  of  tlie  delay  of  the  train,  by 
accident  or  otherwise — Bliss  v.  Pullman  Palace  Car  Co.,  Superior  Ct. 
Cook  Co.,  1.6  Chicago  Legal  News,  338. 

Liability  of  Railroad  Company. —  While  the  passenger  would,  it  would 
seem,  have  an  action  against  the  sleeping  car  company  for  injuries 
rc-ulting  from  its  negligence,  he  may  certainly  hold  the  railroad  com- 
pany responsible  for  such  injuries.  —  Pennsylvania  Co.  r.  Roy,  102  U.  S. 
45'.>;  Thorpe  r.  Railroad  Co.,  TUN.  Y.  402;  Railroad  Co.  v.  Walrath,  38 
Ohio  St.  4W;  Lemon  v.  Pullman  Palace  Car  Co.,  52  Fed.  Rep.  2G2; 
Carpenter  v.  New  York,  etc.,  R.  Co.,  124  N.  Y.  53;  20  N.  E.  Rep.  277. 

In  Pennsylvania  v.  Roy  an  action  was  brought  for  injuries  sustained 
by  the  falling  of  a  berth  of  the  sleeping  car  company.  The  court  say: 
"  For  the. purpose  of  the  contract  under  which  the  railroad  company 
QDdertook  to  carry  over  its  road  and  in  view  of  its  obligation  to  use  only 
cars  that  were  adequate  for  safe  conveyance,  the  sleeping  car  company, 
its  conductor  and  porter,  were,  in  law,  the  servants  and  employes  of  the 
railroail  company.  Their  negligence  or  the  negligence  of  cither  of  them 
as  to  any  matters  involving  the  safety  or  security  of  passengers,  while 
being  conveyed,  was  the  negligence  of  the  railroad  company.  The  law 
will  not  permit  a  railroad  company  engaged  In  the  business  of  carrying 
persons,  engaged  for  hire,  through  any  device  or  arrangement  of  the 
sleeping  car  company,  whose  cars  are  used  by  the  railroad  company  and 
constitute  a  part  of  its  train,  to  evade  the  duty  of  providing  proper 
means  for  the  safe  conveyance  of  those  whom  It  has  agreed  to  convey. 
It  is  also  an  Immaterial  circumstance  that  Roy,  when  Injured,  was  not 
sitting  In  the  particular  sleeping  car  to  which  he  had  been  originally  as- 
signed.    Uis  right  for  the  time  to  occupy  a  seat  in  the  car  in  which  his 


410  MORE   THAN   ORDINARY    CARE. 

Section  IX. 

Neglect  of  duties  by  InnJceepers. 

An  innkeeper  is  not  an  insurer  of  the  goods  of  his  guest, 
but  is  liable  for  negligence  (i^),  and  is  bound  totakesome- 
thing  more  than  ordinary  care  of  his  guest  and  his  guests' 
goods  (x).     It  is  in  his  character  as  innkeeper  that  he  is 

(w)  Cayle's  Case,  1  Sm.  L.  C,  5th  ed.  see  Oxford  v.  Prior,  14  Weekly  Bep.  GU; 
102;  Dawson  v.  Chamney,  5  Q.  B.  164.  As  and  as  to  a  temporary  call  for  refresh- 
to  innkeeper's  liability  to  persons  com-  ment,  see  Ben-nett  v.  Mellor,  5  T.  R.  273. 
ing  to  the  inn,  but  not  to  deal  with  him,  {x)  Campbell,  s.  55. 

friend  was  riding  was  not,  and,  under  the  facts  disclosed,  could  not  be 
questioned." 

In  Railroad  Co.  v.  Walrath,  supra,  a  similar  action,  the  court  say: 
"  Attention  is  called  to  the  fact  that  in  Penn.  Co.  v.  Roy,  where  the 
liability  of  the  railroad  company  for  an  injury  received  in  the  car  of  the 
Pullman  Palace  Car  Co.,  was  asserted,  Harlan,  J.,  lays  stress  on  the  fact 
that  the  railroad  company  had  published  and  circulated  cards,  whicli 
were  in  such  form  as  to  induce  the  belief  that  the  sleeping  car  was  under 
the  management  and  control  of  the  railroad  company.  But,  on  examina- 
tion of  the  whole  opinion,  we  find  there  was  no  intention  to  place  the  lia- 
bility on  such  narrow  ground ;  and  we  have  no  hesitancy  in  saying  that,  in 
the  absence  of  notice  that  the  company  will  not  be  liable  for  defective  ap- 
pliances in  the  sleeping  car,  or  negligence  of  servants  of  the  sleeping  car 
company,  a  passenger  may  assume  that  the  whole  train  is  under  one  gen- 
eral management. —  Thorpe  v.  Railway  Co.,  76  N.  Y.  402;  Kinsley  v. 
Railroad  Co.,  25  Mass.  54." 

That  the  passenger  is  riding  upon  a  free  pass,  providing  that  he  as- 
sumes the  risli  of  accidents,  does  not  preclude  him  from  holding  the 
railroad  company  responsible  for  injuries  caused  by  its  negligence,  In 
case  he  has  purchased  and  paid  for  the  drawing-room  car  ticket. 

In  Ulrich  v.  Railroad  (108  N.  Y.  80;  15  N.  E.  Rep.  60;  27  Daily  Regis- 
ter, 681),  Ulrich  sued  the  company  for  damages  for  injuries  sustained  and 
for  loss  of  baggage  by  a  railway  collision.  The  defense  was  that  he  was 
traveling  upon  a  free  pass,  by  the  terms  of  which  he  assumed  the  risk  of 
accidents,  and  agreed  that  the  company  "  should  not  be  liable  under  any 
circumstances  lor  any  injury  to  his  person,  or  for  any  loss  or  injury  to 
his  property  while  using  this  ticket,"  and  that,  therefore,  he  could  not 
recover.  On  the  trial  in  the  Court  of  Common  Pleas  the  court  so  held, 
and  the  complaint  was  dismissed. 

It  appeared,  however,  that  Ulrich  had  another  ticket  which  he  bad 


INNKEEl'EKS.  411 

required  to  exercise  such  diligence  ;  but  if  he  is  a  mere 
bailee  (y),  or  a  mere  lodging-house  keeper  {z),  ho  would 
only  bo  liable  for  ordinury  negligence. 

(7)  Hyde  v.  Mersey  Nav.  Co.,  5T.  R.       Foster,  Balk.  388;  see  Dansey  f.  Richard - 
>-j,  Williams  r.  (Jesse,  3  HinR.  N.  C.  S49.       son,  3  E.    A  H.  144;  Holder  r.  8oulby,8 
(:)  Uac.  Ab.  Inns,  C.  6;  Parkhurstv.       C.  B.  N.  S.  254. 


bought  and  paid  for,  entitling  liim  to  transportation  in  one  of  the  draw- 
iDK-room  cars.  The  Gcucnil  Term  on  appeal  reversed  the  judgment  and 
ordered  a  new  trial,  holding  that  although  a  pcr.son  riding  on  a  free  pass 
containing  such  an  agreement  relinquishes  his  rights  to  compensalion 
for  injuries,  yet  as  he  was  accepted  as  a  passenger  in  a  drawing-room 
car  on  a  ticket  for  which  he  had  paid,  the  free  pass  giving  him  "  no  right 
to  travel  in  that  car,  the  rights  and  relations  of  the  parties  were 
changed."  The  plaintiff  thereby  has  all  the  rights  that  the  law  gives  to 
passengers,  and  having  paid  for  a  ticket  he  is  not  to  be  considered  as  one 
who,  in  consideration  of  a  free  passage,  has  agreed  not  to  hold  the  com- 
pany liable  for  injuries.  The  company  having  made  a  new  contract  could 
not  now  ignore  it.  The  defendant  has  taken  money  from  the  plaintiff 
lor  carrying  him,  and  it  has  no  right  to  say  that  he  was  a  free  passenger, 
and  to  ask  the  court  to  incorporate  into  the  drawing-room  ticket  the  pro- 
Tlsions  of  the  free  pass."  As  to  the  defense  that  the  drawiiiu'-room  cars 
belonged  to  the  Wagner  company,  the  court,  citing  Thorpe  v.  Railroad, 
76  N.  V.  406),  held,  that  as  no  one  without  leave  of  defendant  could  run 
cars  upon  its  track,  they  must  assume  that  the  drawing-room  cars  were 
run  for  the  benellt  of  defendant.     See  ante,  p.  ;^71. 

Innkeeper  and  Guest. —  An  innkeeper  has  been  held  liable  to  the  same- 
extent  as  a  common  carrier  in  respect  of  the  personal  efifecls  of  his 
guests.— Mason  u.  Thompson,  9  Pick.  280;  Pinkerton  o.  Woodward,  33 
Cal.  557;  Sibley  v.  Aldrich,  33  N.  11.  553;  Schoecraft  v.  Bailey,  25  la.  553; 
Hulett  r.  Swift,  33  N.  Y.  571;  Olson  v.  Grossman,  31  Minn.  222;  Cham- 
berlain r.  Masterton,  2G  Ala.  371;  Shaw  v.  Berry,  31  Maine,  478;  Thick- 
stune  V.  Howard,  8  Blackf.  535;  Burrows  v.  Tricber,  21  Md.  320;  Wood- 
worth  r,  Morse,  18  La.  Ann.  150;  Norcross  v.  Norcross,  53  Me.  ICS; 
Coskery  v.  Nagle,  83  Ga.  69G;  10  S.  E.  Rep.  491;  Shultz  v.  Wall,  134  I'a. 
St.  2C2;   19  All.  Rep.  742;   26  W.  N.  C.  61. 

On  the  other  hand  it  has  been  held,  and  there  are  dicta  to  the  effect,  that 
Innkeepers  are  not  responsible  to  the  same  extent  as  common  carriers; 
that  while  the  loss  of  the  goods  of  the  guest  will  be  presumptive  evidence 
of  negligence  on  the  part  of  the  innkeeper  or  his  servants,  he  may  rebut 
this  presumption  by  showing  that  there  is  no  negligence  whatever.— 
Lawson  Bail.,  §  76;  Merritt  v.  Claghorn,  23  Vt.  177;  Howe  Machine  Co. 
V.  Pease,  49  Vt.  477;  Johnson  v.  Richardson,  17  III.  302;  Ilowth  v.  Frank- 
lin, 20  Tex.  798;   Klsten  v.  Hilderbrand,  9  B.  Mon.  72;  Cutler  v.  Bonney, 


412  MORE  THAN  ORDINARY  CARE. 

The  fact  of  the  loss  of  the  goods  is  prima  facie  evidence 
of  negligence  (a).     The  act  of  God,  or  the  Queen's  ene- 

fa)  Dawson  v.  Chamney,  5  Q.  B.  164. 

30  Mich.  259;  Vance  v.  Throckmorton,  5  Bush,  41;  Bowell  ».  De  Wald, 
2  lad.  App.  303;   28  N,  E.  Rep.  430. 

An  innkeeper,  it  seems,  is  liable  for  losses  sustained  by  his  guests  by 
burglaries  when  unaccompanied  with  violence. —  McDanielsw.  Robinson, 
26  Vt.  337;  Woodworth  v.  Morse,  18  La.  Ann.  156;  Lawson  Bail., 
§76. 

According  to  some  authorities  he  is  liable  for  losses  caused  by  fire, 
though  without  his  fault  or  that  of  his  servants. —  Hulett  v.  Swift,  33 
N.  Y.  571;  Whart.  on  Neg.,  §  678,  citing  Mateer  u.  Brown,  1  Cal.  221; 
Shaw  V.  Berry,  31  Me.  478;  Mason  u.  Thompson,  9  Pick.  280;  Manning 
V.  Wells,  9  Humph.  746. 

According  to  others  he  is  not  liable  for  losses  by  fires  unless  caused 
by  his  or  his  servant's  negligence. —  Merritt  v.  Claghorn,  23  Vt.  177; 
Cutler  V.  Bonney,  30  Mich.  259;  Vance  v.  Throckmorton,  5  Bush,  41. 

He  is  liable  for  money  stolen  from  his  guest,  though  there  is  no  evi- 
dence to  show  how  or  by  whom  it  was  stolen.  —  Dunbier  v.  Day,  12  Neb. 
596;  41  Am.  Rep.  772. 

He  is  liable  for  thefts  committed  by  servants  ("Chamberlain  v.  Master- 
ton,  26  Ala.  371;  Labold  V.  Southern  Hotel  Co.,  54  Mo.  App.  567);  by 
fellow-guests  and  those  about  the  inn. —  Lusk  v.  Belote,  22  Minn.  468; 
Bodwell  V.  Bragg,  29  la.  232;   Sasseen  v.  Clark,  37  Ga.  242. 

It  is  no  excuse  that  he  used  care  in  the  selection  of  his  servants  {Id.)\ 
or  that  he  was  sick,  insane  or  absent  at  the  time. —  Rockwell  v.  Proctor, 
39  Ga.  105;  Houser  ■».  Tully,  62  Pa.  St.  92. 

He  is  liable  for  the  safe-keeping  of  his  guest's  horse  while  in  his  cus- 
tody (Mason  v.  Thompson,  9  Pick.  280;  Sibley  v.  Aldrich,  33  N.  H.  553); 
and  of  his  cattle  (Hilton  v.  Adams,  71  Me.  19),  though  he  may  go  out  to 
dine  or  lodge  with  a  friend.— Grinnell  u.  Cook,  3  Hill,  485;  Wharton's 
Innkeepers,  76. 

But  where  one  left  his  horse  with  an  innkeeper  with  no  intention  of 
stopping  at  the  inn  himself,  and  stopped  at  a  relative's  house,  whose 
guest  he  was,  the  liability  of  the  Innkeeper  was  held  to  be  that  of  an 
ordinary  bailee  for  hire  only.  —  Healy  v.  Gray,  68  Me.  489 ;  28  Am.  Rep.  80. 
But  see  Russell  v.  Fagan,  7  Del.  389;  8  Atl.  Rep.  258.  So  where  a  person 
leaves  goods  without  indicating  his  intention  to  become  a  guest.— Toub 
V.  Schmidt,  15  N.  Y.  S.  Rep.  616. 

And  it  has  been  held  that  where  an  innkeeper  also  keeps  a  seabathing 
house  separate  from  his  inn,  he  is  not  liable  for  goods  and  clothes  of  his 
guest  left  there  while  the  guests  were  bathing. —  Minor  o.  Staples,  71  Me. 
31;  36  Am.  Rep.  318.  ' 

An  innkeeper  has  been  held  liable  for  failing  to  Inform  his  guest  of  the 


INNKEEPERS.  418 

mie8,  is,  as  in  tho  case  of  carriers  at  common  law,  a  good 
ilefenso  (b).     So,  also,  is  the  contributory  negligence  of 

the  plaint itr  (c). 

(6)  Klchmond  r.   Smith,  8  B.  *  C.  9;  mond    r.    SmJlh,  8   11.   ft   (\  0;  Kent  r. 

•nd    «o  U    "  InuviUiblo    accident,"    bco  Shucliard,'2  11.  A  A.  WJi   Tim  kuchI  niU8l 

Wharton,  b.    (uS,  663,   and   as   to  act  of  himeulf    have   used   ordinary   cure,  huo 

tiod,  aeo  <iute,  p.  33(>  .  Cashlll  v.  AVrlglit,  6  K.  ft  U.  891 ;  bcc  hIho 

(c)  Farnworlh  f.  Packwood,  1  Stark.  Oppcnhelin  r.  White  Lion  Hotel  Co.,  L. 

J4»;  liiirKeas  v.  Clements,  4  M.  ft  S.  ;i06;  R.  B  C.  P.  615;  40  L.  J.  C.  P.  231. 
.\rmli)ioad  t'.  Fallur,  17  c^  li.  2(;i ;  Uicb- 

prevaknce  of  small-pox  iu  his  inn,  whereby  the  guest  coDtracted  the 
dlseaee.— Gilbert  v.  Hoffman,  00  la.  205;  23  N.  W.  liep.  C32. 

An  innlieeper  is  not  liable  for  the  loss  of  goods  which  the  guest  has 
taken  into  his  exclusive  possession  and  put  into  an  improper  place  with- 
out the  knowledge  of  the  innkeeper  (Fuller  v.  Coats,  18  Ohio  St.  443) ; 
or  committed  to  the  custody  of  another  (Ilouser  v.  Tully,  C2  Pa.  St.  92)  ; 
or  for  a  theft  committed  by  the  guest's  servants,  or  a  companion  of  the 
guest. —  Gile  v.  Libby,  30  Barb.  00;  Olson  v.  Grossman,  31  Minn.  222. 

"  The  guest  may  retain  personal  custody  of  his  goods  within  the  inn, 
as  his  trunk  and  its  contents,  his  ■wearing  apparel  and  other  articles  in 
bis  room,  and  any  jewelry  or  valuables  carried  or  worn  about  his  person, 
without  discharging  the  innkeeper  from  responsibility."  —  Jalie  t;.  Car- 
ilinal,  35  Wis.  126,  post,  p.  330.  Followed  in  Fay  v.  Taciflc  Imp.  Co. 
(Cal.),20  Pac.  Rep.  lO'J'J. 

When  the  relation  of  innkeeper  and  guest  has  ceased,  the  liability  of 
the  Innkeeper  for  the  personal  effects  of  his  guest  is  that  of  an  ordinary 
bailee. —  O'Brien  v.  Vaill,  22  Fla.  027;  1  So.  liep.  137;  SchefEur  v.  Corson 
(S.  D.),  68  N.  W.  Hep.  555;  Murray  v.  Marshall,  9  Colo.  482;  13  Pac. 
Itep.  580;  Taylor  v.  Downey  (Michigan),  02  N.  W.  Hep.  710. 

Where  a  guest  paid  his  bill  and  had  his  name  checked  from  the  register, 
and  Went  to  an  adjoining  town  for  the  day's  business,  intending  to  return 
at  night,  it  was  held  that  the  innkeeper  was  not  liable  for  the  loss  of  a 
valine  left  at  the  inn  during  that  day,  the  relation  of  host  and  guest  hav- 
ing been  terminated. —  Miller  v,  Peeples,  00  Miss.  819.  So  where  aguest 
at  a  hotel  left  a  valise  in  the  office  of  the  hotel  without  calling  attention 
to  It,  and  the  clerk,  not  knowing  who  the  o>Yner  was,  took  it  into  a  room 
where  baggage  was  kept,  it  was  held  that  the  landlord  was  a  naked 
depositary,  liable  only  for  gross  negligence. —  Stewart  v.  Heard,  70  Ga. 
449. 

Where  a  guest  with  the  landlord's  knowledge  paid  his  bill  and  depart- 
ing left  valuables  with  the  clerk  to  l)e  kept  without  compensation  until 
called  for,  and  the  clerk  embezzled  the  same,  the  innkteper  was  held  not 
liable  for  the  loss.— Whltemore  v.  llarldson,  2  Lea,  312. 

And  where  money  was  deposited  with  the  clerk  of  a  hotel  by  one  who 
left  the  hotel,  and  afterwards  returned,  and  was  assigned  a  room,  the 


414  MORE  THAN  ORDINARY  CARE. 

The  innkeeper  is  liable  for  the  theft  of  his  servant  from 
a  guest  at  his  inn  (d),  but  not  for  burglary  or  robbery  with 

(d)  See  Morgan  v.  Ravey,  6  H.  &N.  265;  and  see  Cayle's  Case,  8  Co.  32. 

landlord  was  held  not  liable  for  the  embezzlement  of  the  money  by  the 
clerk  on  the  ground  that  the  owner  was  not  a  guest  at  the  time  he  made 
the  deposit.— Arcade  Hotel  Co.  v.  Wiatt,  44  Ohio  St.  32;  15  Law  Bull.  97. 

A  guest  has  a  reasonable  time  after  the  payment  of  his  bill  in  which 
to  remove  his  baggage. —  Maxwell  v.  Gerard,  32  N.  Y.  S.  Rep.  849.  But 
the  extraordinary  liability  of  innkeeper  does  not  arise  as  to  goods  sub- 
sequently delivered. —  Wear  v.  Gleason,  52  Ark.  264;   12  S.  W.  Rep.  756. 

Upon  this  subject,  in  the  case  of  Glenn  v.  Jackson  (93  Ala.  342;  9  So. 
Rep.  259),  the  court  said:  "  If  a  traveler,  intending  to  become  a  guest 
at  a  hotel,  meets  a  porter  of  the  hotel  at  the  depot  or  other  usual  stop- 
ping places  for  travelers,  and  intrusts  his  baggage  with  the  porter  of 
the  hotel,  whose  duty  it  is  to  deliver  the  baggage  at  the  depot,  the  rela- 
tion is  continued  until  the  delivery  at  the  designated  place.  But  these 
principles  of  law  afford  no  protection  to  one  who  intrusts  his  baggage  to 
a  mere  servant  of  the  hotel  not  authorized  to  receive  baggage,  with 
directions  to  him  to  check  it  for  safe-keeping  until  his  return,  then  pays 
his  bill  to  the  clerk,  and  terminates  his  relation  as  guest,  and  gives  no 
notice  to  the  innkeeper  or  clerk  that  he  expects  to  return,  and  that  he 
has  left  his  baggage  to  be  taken  care  of  until  his  return." 

But  the  liability  of  the  innkeeper  may  attach  before  one  has  entered 
the  hotel  or  been  assigned  a  room.  If  he  undertakes  to  cai'ry  persons 
and  their  baggage  from  the  railroad  station  to  the  inn,  he  becomes  an- 
insurer  of  the  passenger's  baggage  during  the  transit. —  Sasseen  v.  Clark, 
37  Ga.  242,  followed  in  Coskeryy.  Nagle,  83  Ga.  696;  10  S.  E.  Rep.  491; 
Dickinsons.  Winchester,  4  Cush.  114;  Maloneyu.  Bacon,  33Mo.  App.  501. 

Contributory  Negligence. —  The  guest  may  be  guilty  of  such  negligence 
himself  as  will  defeat  an  action  by  him  for  loss  or  injury  to  his  personal 
effects.—  Shultz  v.  Wall,  184  Pa.  St.  262;  19  Atl.  Rep.  742;  26  W.  N.  C. 
Rep.  51,  following  Walsh  v.  Porterfield,  87  Pa.  St.  37G. 

Where  one  kept  in  his  room  a  large  amouut  of  money  in  gold  coin 
instead  of  leaving  it  at  the  office  of  the  hotel,  as  he  knew  the  rules  of  the 
inn  required,  and  it  was  stolen,  it  was  held  that  he  could  not  recover  in 
an  action  against  the  landlord  for  the  loss. —  Purvis  v.  Coleman,  21  N. 
Y.  111. 

Where  one  carelessly  hung  his  overcoat  in  an  open  hall  of  an  inn, 
instead  of  placing  it  in  the  coat-room  which  he  knew  was  provided  for  the 
purpose  (Fuller  v.  Coates.,  18  Ohio  St.  303),  or  intrusted  his  effects  to 
another  (Ilouser  v.  Tully,  62  Pa.  St.  92),  the  landlord  was  held  not  liable 
for  the  loss. 

But  failure  on  the  part  of  the  guest  to  keep  his  room  constantly  locked 
will  not  constitute  such  negligence  as  will  prevent  him  from  recovering 


INNKEEPERS.  415 

[332]  violence,  it  is  said,  where  ho  can  show  lh:it  the 
force  which  occasioned  the  loss  was  truly  irresistible  (e). 

(e)  Jonos  on  ItallmcntB,  %.  Various  tits  grQCst'B  Roods  by  burglary,  Ac,  In 
other  authorltioH  arc  cited  to  prove  that  Wharton,  a.  (i77,  but  they  do  not  appear 
aa  Innkeeper  Is  not  liable  for  a  loss  of       to  bear  out  the  text. 

for  the  loss  of  his  effects  (Batterson  v.  Vogel,  10  Mo.  App.  235)  ;  nor  will 
an  omission  to  inform  the  innkeeper  that  there  is  no  lock  on  his  door. — 
LAnler  r.  Younfiblood,  73  Ala.  587. 

Where  plaintiff  had  a  sum  of  6500  in  money  and  a  Rold  watch  and 
chain  stolen  from  his  room  at  night,  he  having  failed  to  lock  or  bolt  his 
door,  it  was  held  that  since  no  notice  of  depositing  such  articles  with  the 
innkeeper  was  given,  and  no  regulation  about  fastening  doors  was  shown, 
the  Kucst  was  not  necessarily  negligent. —  Murchison  v.  Sergent,  69  Ga. 
206;  47  Am.  Rep.  754. 

Where  a  guest  closed  and  locked  his  room  door  but  failed  to  discover 
a  bolt  about  six  inches  from  the  top  of  the  door  to  wliich  his  attention 
WM  not  called,  it  was  held  that  he  was  not  guilty  of  contributory  negli- 
^•'nce,  robbers  having  entered  while  he  was  asleep  and  carried  away  his 
watch,  chain,  and  money. —  Spring  v.  ilager,  145  Mass.  18C;  13  N.  E. 
Itep.  479. 

In  the  case  of  Smith  r.  Wilson  (30  Minn.  334;  31  N.  W.  Rep.  177), 
the  court  .said :  "  The  fact  that,  sleeping  in  a  room  at  the  hotel  occupied 
only  by  himself,  that  plaintiff  retained  the  sum  of  8495.00  of  money 
secured  in  a  belt  around  his  body,  was  not  such  conduct  as  should  be 
deemed  negligence  as  a  matter  of  law,  although  the  bolt  of  the  door  to 
his  room  could  be  opened  with  a  wire  from  the  outside." 

Consenting  to  occupy  a  room  with  another  guest  is  not  contril)utory 
negligence  on  the  part  of  the  plaintiff. —  Olson  r.  Grossman,  31  Minn.  2'_'2. 

So  consenting  to  use  a  room  only  until  the  arrival  of  a  guest  who 
had  engaged  it  entitles  one  to  have  his  luggage  and  jewelry  in  the  room 
properly  cared  for  during  the  day  and  after  the  arrival  of  the  guest  en- 
titled to  occupy  it.—  Medawar  v.  Grand  Hotel  Co.  [1891],  2  Q.  B.  11. 

And  an  innkeeper's  liability  has  been  said  to  be  increased  rather  than 
diminished  by  the  fact  that  the  guest  has  got  too  drunk  at  the  bar  to  lake 
care  of  himself.— Rubenstein  v.  Crulkshanks,  54  Mich.  199;  52  Am. 
Rep.  806;  19  N.  W.  Rep.  954.  Intoxication  of  a  guest  is  no  excuse  for 
his  negligence.—  Schultz  r.  Wall,  134  Pa,  St.  2t;2;  19  All.  Rep.  742;  26 
W.  N.  C.  51,  following  Walsh  v.  Porterfleld,  87  Ta.  St.  37<;. 

Statvtortj  Liabilitij .—  Statutes  exist  in  the  various  States  limiting  the 
liability  of  the  Innkeeper.  They  provide  generally  that  the  innkeeper 
shall  not  be  liable  for  the  loss  of  certain  articles  of  value,  money,  jewelry 
and  the  like,  unless  the  guest  deposits  them  with  the  landlord  for  safe 
keeping.  Such  statutes  must  be  strictly  complied  with  to  exonerate  the 
innkeeper. 


416  MORE   THAN   ORDmARY    CARE. 

[333]  The  liability  of  the  innkeeper,  as  such,  will  con- 
tinue, it  seems,  for  some  reasonable  time  after  the  departure 

Where  a  statute  provided  that  the  innkeeper  must  keep  posted  on  his 
doors  and  at  other  public  places  written  or  printed  notices  that  he  should 
not  be  liable,  etc.,  it  was  held  that  he  must  post  notices  on  the  door  of 
each  guest  chamber,  and  posting  notice  on  a  single  door  was  not  suffi- 
cient (Lanier  v.  Youngblood,  73  Ala.  587),  and  his  failure  to  do  so  was 
not  excused  by  the  fact  that  the  guest  had  actual  notice. — Id. 

A  notice  printed  at  the  head  of  the  register,  or  given  orally,  will  not 
do  under  the  Minnesota  statute.— Gen.  St.  1878,  ch.  124,  §§  21,  22;  Olson 
V.  Grossman,  31  Minn.  222.  And  it  is  no  defense  that  the  guest  had  read 
a  copy  of  the  statute  upon  the  register,  no  copy  having  been  posted  in 
his  bedroom. — Batterson  v.  Vogel,  8  Mo.  App.  24. 

The  question  whether  statutory  notices  are  properly  posted  is  for  the 
jury  to  determine. —  Chamberlain  v.  West,.  37  Minn.  54;  33  N.  W.  Rep. 
114;   Shultz  V.  Wall,  134  Pa.  St.  262;   19  Atl.  Rep.  742. 

While  a  strict  compliance  with  the  provisions  of  such  a  statute  is 
required  to  relieve  the  innkeeper  of  liability,  a  similar  obligation  rests 
upon  the  guest  where  the  statute  imposes  upon  him  certain  duties. 
Where  a  statute  provided  that  no  innkeeper  should  be  liable  for  the  loss 
of  any  merchandise  for  sale  or  sample  belonging  to  the  guest,  unless  the 
guest  should  give  him  written  notice  of  having  such  merchandise  in  his 
possession  after  entering  the  inn,  and  that  the  innkeeper  should  not  be 
compelled  to  receive  guests  with  such  merchandise  in  their  possession,  it 
was  held  that  notice  in  writing  was  absolutely  necessary  to  fix  the  inu- 
keeper's  responsibility,  and  he  waived  nothing  by  admitting  a  guest 
knowing  that  he  had  merchandise  for  sale  or  sample  in  his  possession.— 
Fisher  v.  Kelsey,  19  Fed.  Rep.  71. 

The  obligation  of  the  guest  to  notify  the  innkeeper  that  he  has  prop- 
erty of  extraordinary  value,  has  been  held  not  to  attach  to  a  peddler  with 
his  pack,  or  with  the  usual  appurtenances  of  his  business.  — Rubenstein 
V.  Gruikshanks,  54  Mich.  119;  19  N.  W.  Rep.  954;  52  Am.  Rep.  806. 

There  has  been  some  confusion  in  the  construction  of  statutes  limiting 
the  liability  of  the  innkeeper  for  the  loss  of  the  personal  effects  of  the 
guest.  The  language  of  the  New  York  statute,  "money,  jewelry  or 
ornaments"  (N.  Y.  Laws,  1855,  Ch.  421,  p.  774;  N.  Y.  Rev.  Stats.,  p. 
1282),  is  held  not  to  include  a  watch  and  chain  within  its  provisions 
(Ramelyw.  Leland,43  N.  Y.  539),  as  well  as  the  language  of  the  Maryland 
statute  (Rev.  Code,  1878,  art.  67,  Ch.  17  §§  5  and  6),  "money,  jewelry 
and  plate,"  (Maltby  v.  Chapman,  25  Md.  313).  But  the  language  of  the 
Wisconsin  statute  (Rev.  Stat.  Wis.  1878, p.  303,  §  1725),  "money,  jewelry 
and  articles  of  gold  and  silver  manufacture  and  the  like,"  has  been  held 
to  include  a  watch  and  chain.  —  Stewart  v.  Parsons,  24  Wis.  241. 

An  inferior  court  in  Ohio  has  held  that  the  language  of  the  Ohio 
Btatute  (Rev.  Stat.  447),  "money,  bank-notes,  jewelry  and  articles  of  gold 


INNKEEPERS.  417 

of  a  [334]  guest  who  has  left  his  goods  to  ho  sent  for 
with  the  huicllord's  consent  (/)  ;    and  it  is  certuiD  that  hia 

(/)  Sco p«r  Brown,  O.  J.  In  Adams  r.  Clem,  41  Ga.  67. 

and  silver  manufacture,"  included  a  pold  watch  and  chain,  gold  locket 
and  $70  in  money.  —  Lang  v.  Arcade  Hotel  Co.,  Ham.  Co.  Com.  I'lra.**,  12 
Law  IJull.  'J50.    (See  abstract  of  Mr.  Jenney's  brief  in  12  Law  Bull.  25;j.) 

St.ilute3  refiulatinc;  the  liability  of  innkeepers  for  goods  belonj^ing  to 
quests  have  been  sustained  in  Fisher  v.  Kelsey,  7  S.  Ct.  Kep.  'J'i'J; 
Becker  r.  Uaynes,  29  Fed.  Rep.  411;  Fay  v.  Pacific  Imp.  Co.  (Cal.),  26 
Pac.  Hep.  1000;  28  Pac.  Rep.  943;  93  Cal.  253. 

Whols  a  Guest?  — "  If  a  person  puts  up  at  an  inn  as  a  traveler,  and  is 
received  as  such,  the  relation  of  innkeeper  and  guest  is  Immediately 
established,  with  all  its  rights  and  liabilities;  and,  once  established, 
neither  duration  of  time,  nor  a  special  agreement  in  respect  to  price, 
necessarily  changes  such  relation,  which  continues  so  long  as  the  per- 
son so  received  sojourns  as  a  traveler,  which  is  also  presumed  until  the 
contrary  appears."  —  Ross  v.  Mellin,  3G  Minn.  421;  32  N.  W.  Rt-p.  172. 
.\nd  in  other  cases  it  has  been  expressly  held,  that  the  length  of  time  6ue 
may  stay  at  an  inn  (Berkshire  Woolen  Co.  v.  Procter,  7  Cusli.  417;  Magee 
r.  Paciflc  Imp.  Co.,  98  Cal.  C78;  33  Pac.  Rep.  772),  or  the  payment  of  a 
stipulated  sum  per  week  (Norcross  v.  Norcross,  53  Me.  1C3;  Pinkerton 
V.  Woodward,  33  Cal.  557),  does  not  neces.sarily  change  the  relation  of 
innkeeper  and  guest. 

Carpenter,  J.,  said  In  Walling  v.  Potter  (35  Conn.  183;  7  Am.  Law 
Beg.  G18),  one  might  be  a  guest  '•  though  a  townsman  and  neighbor." 

But  where  one  went  to  a  hotel  near  his  residence  about  midnight,  with 
a  disreputable  woman,  and  registered  as  man  and  wife,  and  delivered  to 
the  clerk  money  for  safe  keeping  before  retiring,  it  was  held  that  the 
landlord  was  not  liable  for  its  embezzlement  by  the  clerk,  the  relation  of 
Innkeeper  and  guest  not  having  t)een  established. —  Curtis  v.  Murphy,  t>3 
Wis.  4;  53  Am.  Rep.  242;  22  N.  W.  Rep.  825;  13  Law  Bull.  488. 

In  another  case  already  referred  to  (Arcade  Hotel  Co.  r.  Wiatt,  44 
Ohio  St.  32;  15  Law  Bull.  97),  the  keeper  of  a  gambling  house  closed 
his  business  at  two  o'clock  in  the  morning,  and  went  to  a  hotel  In  the 
same  city  where  he  left  with  the  clerk  a  large  sura  of  money,  receiving 
his  receipt  therefor.  He  said  he  did  not  desire  a  room  at  the  time  and 
none  was  assigned  him.  He  did  not  register.  He  left  the  hotel,  returned 
after  a  few  hoars  and  was  assigned  a  room.  The  clerk  absconded  with 
the  money.    The  company  was  held  not  liable. 

A  transient  visitor  is  not  the  less  a  guest  because  he  makes  a  special 
contract  for  board  at  reduced  rates. —  Beale  p.  Posey,  72  Ala.  323. 

And  it  has  been  held  that  an  army  ofTlcer  boarding  with  his  family  upon 
fixed  terras  at  a  hotel  in  the  city  in  which  he  is  stationed,  is  a  guest.— 
Hancock  r.  Rand,  94  N.  Y.  1;  46  Am.  Rep.  112. 

27 


418  MORE   THAN   ORDINARY   CARE. 

liability  continues   during   the  temporary   absence   of  his 

guest  ((/). 

(fir)  Bather  v.  Day,  2  H.  &  C.  14. 

But  a  railway  conductor,  who  with  other  fellow  conductors,  rented  a 
room  in  a  hotel  at  one  end  of  his  route,  where  they  could  sleep,  and  make 
up  accounts,  and  receive  their  friends,  has  been  held  not  a  guest.— 
Horner  v.  Harvey,  S.  C  New  Mexico,  5  Pac.  Rep. ;  14  Law  Bull.  397. 

So  far  as  any  uniformity  in  the  decisions  on  this  subject  is  concerned, 
the  question  as  to  who  is  a  guest  might  as  well  be  left  to  the  jury  (Jalle 
V.  Cardinal,  35  Wis.  118;  supra,  p.  413)  as  to  the  court. 

Miscellaneous. —  Boarding-house  keepers  are  not  held  to  the  same  de- 
gree of  care  as  innkeepers.  In  one  case  it  is  laid  down  that  they  must 
use  such  care  at  least  of  the  boarder's  personal  effects  as  a  prudent  per- 
son would  take  of  his  own  property.  (Smith  v.  Read,  52  How.  Pr.  N.  Y. 
14;  6  Daly,  33).  In  another  it  was  held  that  they  were  not  responsible 
for  the  safe  keeping  of  the  boarder's  personal  effects  unless  there  was 
proof  of  gross  negligence. —  Jeffords  v.  Crump,  12  Phil.  500. 

Where  an  inmate  of  a  lodging  house  leaves  the  door  of  his  room 
unlocked,  knowing  that  the  house  could  be  entered  by  persons  unnoticed, 
he  cannot  recover  from  the  keeper  of  the  house  for  articles  stolen  from 
the  room. — Swann  v.  Smith,  14  Daly,  114. 

In  one  case  a  restaurant  keeper  was  held  liable  for  the  loss  of  an  over- 
coat of  a  customer,  who,  before  dining,  hung  it  on  one  of  the  hooks 
intended  for  that  purpose.  (Kopper  v.  Willis,  9  Daly,  N.  Y.  460.)  But  in 
another  case  a  hotel-keeper  was  held  not  liable  for  the  loss  of  a  coat  of  a 
friend  of  a  guest  invited  to  dine  with  him,  which  he  had  left  on  a  chair 
in  the  hall  way.  (Gastenhoffer  v.  Clair,  10  Daly,  265.)  A  public  caterer 
has  been  held  liable  in  damages  for  supplying  guests  with  unwholesome 
food.— Bishop  V.  Weber,  139  Mass.  411 ;  1  N.  E.  Rep.  154. 

In  Gilbert  v.  Hoffman  (66  la.  205;  55  Am.  Rep.  263;  23  N.  W.  Rep. 
632,  noted  supra),  it  was  held  that  a  hotel-keeper  who  with  knowledge  of 
the  prevalence  of  small-pox  in  his  hotel,  keeps  it  open  for  business  and 
permits  a  person  to  become  a  guest,  without  informing  him  of  the  pres- 
ence of  the  disease,  will  be  liable  for  any  damages  caused  by  the  guest's 
contracting  the  disease  without  any  contrib\itory  negligence  on  his  part; 
that  the  keeping  of  a  hotel  open  for  business,  under  such  circumstances, 
is,  in  effect,  a  representation  to  travelers  that  it  is  a  reasonably  safe 
place  at  which  to  stop,  and  one  who  acts  on  such  representation  and  is 
injured  because  of  its  untruth,  cannot  be  precluded  frdm  recovering  on 
the  ground  of  contributory  negligence  in  not  making  inquiries  as  to  the 
truth  of  a  rumor  that  there  was  small-pox  in  the  house.  (See  Smith  v. 
Baker,  U.  S.  C.  C.  D.  N.  Y.,  12  Law  Bull.  104,  in  which  it  was  held  that 
aguest  or  boarder  may  be  held  liable  for  negligently  spreading  a  contagious 
disease  in  a  hotel  or  boarding-house.) 


PHYSICIANS    AND    SUKOEOXS.  419 

[335]  The  26  &  27  Vict.  c.  41,  s.  1,  enacts  that  no  inn- 
keeper shiill  1)0  liable  to  make  good  to  any  fjuest  any  lo.s.s 
of  or  [33(5]  injury  to  goods  or  property  brought  to 
his  inn  {//)  to  a  greater  amount  than  the  sum  of  £30, 
except  in  the  follow-  [337]  ing  cases :  (1)  where  such 
goods  or  j)roi)erty  shall  have  been  stolen,  or  lost  or  in- 
jured, through  the  willful  act,  default  or  neglect  of  such 
innkeeper,  or  any  servant  in  his  employ;  (2)  where  such 
goods  or  property  -liail  have  been  deposited  expressly  for 
safe  custody  with  such  innkeeper  (/). 


[338]     Section  X. 

Neglect  of  duties  by  Physicians,  cCc. 

It  cannot  be  predicated  of  any  act  that  it  is  jier  se  negli- 
gence; it  is  only  so  if  it  is  a  breach  of  duty  {k).  The  tirst 
question  therefore  is,  what  is  the  duty  which  the  person 
had  to  perform?  Some  persons  have  more  difficult  duties 
to  perform  than  others.  If  they  neglect  those  duties  they 
are  the  more  to  blame,  because  they  are  bound  to  bring 
more  skill  and  care  to  their  execution  ;  but,  on  the  other 
hand,  the  duties  being  more  difficult,  they  may  more  easily 


(fc)  Not  being  a  horse  or   other  live  he  refases  to  receive  the  Koods  for  enfo 

aolmal,     or     any    gear      appertaining  custody,  or  by  s.  3,  If  he  does  not  cause  a 

thereto,  or   any  carriage.  copy  of  the  Ist  section  of  the  art  to  bo 

(i)  There  is  a  proviso  that  the  Inn-  put  up  in  the  Inn.    Such  copy  should  be 

keeper  may  rmiulre  the  goods  to  be  de-  a  correct  copy,  sec  Splcc  v.  IJacon,  L.  It. 

posited  In  a  scaled  box,  and  by  s.  '2  he  Is  2  Ex.  I).  -If,:};  C.  A.;4ti  I-.  J.  Ex.  7i:!. 

not  entitled  to  the  beneflt  of  the  act  if  (A)  As  we  have  seen,  ante,  i)p.  2,  3. 

In  Davis  v.  Gay  (141  Mass.  531  i  G  N.  E.  Rep.  549),  It  was  held  that 
the  owuer  of  uii  apartment  hotel  is  not  an  iunholdcr,  and  is  not  liable  to  a 
tenant  occupying  a  suite  of  rooms  In  the  hotel  for  the  loss  of  personal 
property  stored  In  a  general  trunk-room  in  the  hotel  by  the  tenant, 
where  the  owner  of  the  hotel  was  not  guilty  of  gross  ncRllpencc  anil 
where  there  was  no  agreement  between  the  parties  as  to  any  compcnsatlou 
lor  the  storage,  none  demanded  and  none  paid. 


420  MOKE  THAN  ORDINARY  CARE. 

fail  notwithstanding  the  utmost  care.  When  due  allowance 
has  been  made  for  the  difficulty  of  performing  the  duty,  any 
negligence  which  has  prevented  its  performance  becomes  of 
a  grave  character,  because  by  undertaking  to  perform  the 
difficult  duty  the  performer  has  undertaken  to  use  superior 
care  and  skill.  The  question  is  has  the  high  duty  which 
has  been  undertaken  been  reasonably  fulfilled  (Z)?  It  is 
also  to  be  borne  in  mind  that  in  the  case  of  medical  men 
not  only  is  the  duty  difficult,  but  the  consequences  of  neg- 
lect may  be  disastrous.  It  was  observed  by  Lord  Ellen- 
borough  that  "  more  than  an  ordinary  degree  of  skill  was 
necessary  for  a  surgeon  who  undertakes  to  perform  surgi- 
cal operations,  which  is  shown  by  the  case  in  Wilson  (m); 
something  more  than  the  farrier  who  undertakes  to  cure  a 
horse"  (n). 

Physicians  could  not  at  common-law  recover  their  fees  (o) 
unless  there  was  an  undoubted  special  contract  (p).  But 
now  by  the  31st  section  of  the  21  &  22  Vict.  c.  90,  they 
can  sue,  and  they  need  not  prove  any  contract  (q).  A 
[339]  surgeon,  or  a  physician  acting  as  such,  might 
always  sue  for  his  fees  (r). 

It  is  said  that  a  physician  or  surgeon  who  acts  gratui- 
tously is  only  liable  for  gross  negligence.  By  the  Roman 
law  the  undertaking  of  the  performance  of  something  was 
called  •'  majidatum,"  and  it  would  be  immaterial  that  it  was 
done  gratuitously,  for  the  Roman  law  said,  if  you  under- 
take to  do  a  thing  you  must  take  ordinary  care  about  the 

(T)  Bee  ante,  Ch.  I.  (5)  Gibbon  v.  Badd,  32  L.  J.  Ex.  182. 

(to)   Slater  w.  Baker,  2  Wils.  359  Any  college  of  physicians  may,  however, 

(n)  Seare  v.  Prentice,  8  East,  352.  make  by-laws  restraining  the  members 

(o)  Chorley  v.  Bolcot,  4  T.  R.  317.  from  suing. 

(p)  Attorney-General  v.  Royal  Cor  fr)  Battersby    v.  Lawrence,  Car.  & 

lege  of  Physicians,  30  L.  J.  Ch.  757.  Mars.  277. 

(n)  A  veterinary  surgeon  is  not  required  to  use  extraordinary  diligence 
or  the  highest  degree  of  skill  (Barney  v.  Pinkham,  29  Neb.  350,  45  N.  W. 
Rep.  694);  but  he  is  responsible  for  negligence. —  Boom  v.  Reed,  G!> 
Hun,  426;  23  N.  Y.  S.  Rep.  421. 


PHYSICIANS    AND    SURGEONS.  421 

doinf];  of  it  (.s).  The  English  law,  on  the  olhcr  h;incl,  nays 
that  in  consideration  of  my  trusting  you  with  the  doing  of 
tho  thing  you  impliedly  promise  me  to  do  it,  and  so  you 
create  a  duty  to  do  it  (/),  and  you  must  take  ordinary  care 
at  tho  least.  So  that  both  the  Koman  and  English  laws 
say  that  ordinary  care  must  bo  taken  in  the  case  of  gra- 
tuitous mandate,  or,  in  other  words,  that  a  pliysician  acting 
gratuitously  is  liable  for  ordinary  negligence,  at  tho  least. 
But  it  has  been  felt  that  a  physician  acting  gratuitously  is 
still  a  person  who  professes  to  use  skill,  and  that  if  he  does 
not  exercise  the  skill  which  he  ought  to  have  he  is  guilty 
of  a  grave  breach  of  his  duty;  and  because  it  is  a  general 
rule  that  a  person  who  is  unpaid  is  not  liable  except  for 
gross  negligence,  lawyers  have  called  this  want  of  skill, 
gross  negligence  ;  and  so  it  has  come  to  be  said  that  a 
physician  who  acts  gratuitously  is  only  liable  for  gross 
negliffcnce,  whereas  he  is  liable  for  showinjj  want  of  skill. 
In  truth,  the  word  '*  gross"  does  not  hero  mean  anything 
more  than  that  it  would  bo  ordinary  negligence  in  another 
person,  but  that,  in  a  person  who  should  be  skillful,  ordi- 
nary negligence  may  be  called  "  gross." 

A  surgeon  is  not  an  actual  insurer  ;  he  is  only  bound  to 
display  sufficient  skill  and  knowledge  in  his  profession  (u). 
He  does  not  undertake  to  perform  a  cure,  or  even  to  use 
[340]  the  highest  possible  skill,  but  a  competent  and 
proper  degree  of  skill  (x). 

An  unqualified  person  who  acts  as  a  doctor  is  of  course 

(«)  Wharton,  8.  493 ;  Camp.,  a.  8.  ported  to  have  Haid  that  medical  gen- 

(0  Oojtgs  r.  Bernard,  1  Sm.  L,.  C.  177.  tlemen  who  give  their  scrvlcos  grata!- 

(u)    I'lr    Tlndall,   C.    J.    Uanko   r.  touslv  were  not  to  bo  made  liable  lor 

Hooper,  7  C.  &  P.  84.  negligence   for   which    they   wore  not 

(T)  I^raphier  r.  Phipoa,  8  C.  &  P.  475;  personally   rcBponaiblc.    (Nurses  gave 

Rich  f.  Picrpont, :{  F.  &  F.  35.    In  a  case  too  hot  a  bath  to  a  patient  In  »  hoe- 

•t  ffisi  Prius,  Penonowskl  v.  Freeman,  pital) ;  [see  in/ra]. 

4   F.  A    F.  982,  Oockbum,  C.  J.,  Is  re- 

(i)  The  measare  of  skill  which  a  physician  is  bound  to  exercise  Is  not 
affected  by  his  refusal  of  a  proffer  of  assistance  from  other  physicians.— 
Potter  r.  Warner,  01  Pa.  St.  362;  36  Am.  Uep.  G68. 


422  MORE   THAN    ORDINARY   CARE. 

equally  bound  to  bring  competent  skill  to  the  performance 
of  the  duty  which  he  has  undertaken  {y). 

The  cases  in  which  mere  negligence  has  been  established 
against  professional  persons,  such  as  solicitors,  doctors,  &c., 
do  not  appear  to  be  very  numerous,  and  two  reasons  may 
be  given  for  this.  In  the  first  place,  the  taking  of  care  is 
almost  their  raison  d'etre,  while  to  many  other  persons  the 
taking  of  care  may  be  an  impediment  to  their  business; 
and  in  the  second  place,  and  as  a  consequence  from  the 
above-mentioned  reason,  when  they  are  negligent,  such 
negligence  amounts  in  general  to  fraud  or  intentional  neg- 

(.y)  Ruddock  r.  Lowe,  4  F.  &  F.  519;  Jones  v.  Fay,  ib.  525;  [see  infra\, 

(y)  A  non-expert  is  liable  for  gross  negligence.  "  But  if  by  forcing 
himself  into  a  case  he  excludes  a  competent  physician  he  is  liable  for 
culpa  levis  or  the  lack  of  the  diligence  of  a  specialist, —  Whart  on  Neg., 
§  732,  citing  Hood  v.  Grimes,  13  B.  Mon.  188;  Ruddock  v.  Lowe,  4  F. 
&F.  519. 

In  De  May  v.  Roberts  (46  Mich.  160;  41  Am.  Rep.  154),  it  was  held  that 
"  when  a  physician  takes  an  unprofessional  man  with  him  to  attend  a 
conflnement  case  when  no  real  necessity  exists  for  the  latter's  assistance, 
both  are  liable  in  damages  to  the  woman,  and  it  makes  no  difference 
that  the  patient  or  her  husband  supposed  at  the  time  that  the  intruder 
was  a  medical  man,  and  therefore  submitted  without  objection  to  his 
presence." 

Physicians  and  Surgeons. —  In  England  a,  physician  could  not  prior 
to  the  statutes  21  and  22  Vict.,  Ch.  90,  §  31,  maintain  an  action  for  his 
fees  except  upon  an  express  contract  (Chorley  v.  Bolcot,  4  T.  R.  317; 
Veitch  V.  Russell,  3  Gale  &  D.  198)  ;  but  a  surgeon  could. —  Battersbyo. 
Lawrence,  Car.  &  M.  277. 

In  this  country  physicians  and  surgeons  may  sue  for  fees  (Shearman  & 
Redf.  on  Neg.,  §  431;  Judah  v.  McNamee,  3  Blackf.  269);  and  for  serv- 
vices  of  students  in  attendance  upon  their  patients. —  People  v.  Monroe, 
4  Wend.  200. 

But  if  they  do  not  possess  the  requisite  skill  (Langolf  v.  Promer,  2 
Phila.  Rep.  17),  or  practice  without  a  license  (Adams  v.  Stewart,  5  Harr. 
144;  Bower  v.  Smith,  8  Ga.  74),  or  without  a  degree  (Holmes  v.  Halde,  74 
Me.  28),  they  can  not  in  general  recover  for  services  rendered. 

Liability. —  They  are  liable  for  injuries  resulting  from  want  of  ordi- 
nary care  and  skill  in  the  treatment  of  patients. —  Langdon  v.  Humphrey, 
9  Conn.  209;  Howard  v.  Grover,  28  Me.  97;  Patten  v.  Wiggin,  51  Me.  594; 
Craig  V.  Chambers,  17  Ohio   St.  253;  Graham  v.  Gautier,  21  Tex.  Ill; 


PIIYSiriAXS   AM)   SUKOEOX8.  423 

[341]  lect.  In  the  case  of  doctors  such  mutters  have 
tx'como  tlio  subject  of  investigation  in  the  criiuinal  courts 
where  death  has  ensued  (c). 

(:)  Soo  II.  V.  St.  John  I>ong,  4  C.  &  P.  in  Russell  on  Crtmcfl,  6tl.  ed.  vol.  1,  p. 
'.ig.  and  the  rest  of  tho  uaaes  collected      664,  et  sa/. 

McCanless  v  McWha,  22  Pa.  St.  2G1 ;  Leighton  r.  Sargent,  27  N.  H.  4G0; 
Gallagher  v.  Thompson,  Wright  4f;G;  West  v.  Martin,  31  Mo.  375;  Barne.s 
r.  Means,  8-'  111.  :57"J;  Hitchcock  r.  Burgett,  38  Midi.  i301-,  Hewitt  c. 
Elsenbart,  3G  Neb.  704;  55  N.  W.  Ilfp.  251';  State  v.  Housekeeper,  70  Md. 
1G2;  IG  Atl.  Rep.  382;  Mucci  v.  Houghton  (Iowa),  57  N.  W.  Rep.  305; 
Becker  v.  Janinski,  27  Abb.  N.  C.  45;  15  N.  Y.  S.  Rep.  C75;  Rowe  v.  Lent, 
62  Hun,  G21 ;  17  N.  Y.  S.  Rep.  131 ;  Ayres  v.  Russell,  50  Hun,  282 ;  3  N.  Y. 
S.  Rep.  338;  Beck  v.  The  Gerraau  Klinik,  78  la.  090;  43  N.  \V.  Rep.  017; 
Lewis  r.  Dwiuell,  84  Me.  497;  24  Atl.  Rep.  945. 

Whether  they  act  gratuitously  or  not. —  Nevlns  v.  Lowe,  40  111.  209; 
Joues  V.  Augell,  95  Ind.  37G. 

They  do  not,  however,  insure  a  perfect  cure. —  O'llara  r.  Wells,  14 
Neb.  403;  Patten  v.  Wiggin,  51  Me.  59G;  Graham  r.  Gauller,  21  Tex.  Ill ; 
McCandlessr.  McWha,  22  Pa.  St.   2G1 ;  Vanhoo.ser  r.  Berghoff,  90  Mo. 

Nor  do  they  undertake  to  use  the  highest  degree  of  skill  (Lamphier  v. 
Phipos,  8  C.  &  P.  475),  not  more  than  the  ordinary  skill  that  is  po8.tessed 
by  others  In  the  profession. —  Smothers  v.  Hawks,  34  la.  2SG;  Howard  r. 
Grover,  28  Me.  97. 

They  undertake  that  they  will  exercise  a  reasonable  diligence  and 
skill.—  Shearman  &  Redlleld  on  Neg.,  §  433. 

That  is  all  the  law  implies  from  the  contract  of  service. —  Patten  v. 
Wlggln,  51  Me.  594;  Reynolds  v.  Graves,  3  Wis.  31G;  Clayford  v.  Wil- 
bur, 8G  Me.  413;  29  Atl.  Rep.  1117;  Jones  v.  Burtis,  88  Wis.  478;  GO 
N.  W.  Rep.  785. 

Accordingly,  an  instruction  that  a  physician  should  employ  such  skill 
"  as  is  ordinarily  exercised  by  thoroughly  educated  physicians  and  sur- 
geons "  (Smothers  v.  Hawks,  34  la.  286),  or  ♦'  such  skill  as  is  ordinarily 
exercised  by  educated  physicians  "  (Hitchcock  v.  Burgett,  38  Mich.  501), 
has  been  held  erroneous.  See  Peck  v.  Hutchin.^on,  88  la.  320;  55  N.  W. 
Rep.  513.  But  an  instruction  that  ordinary  skill  is  "the  skill  which  a 
surgeon  would,  under  the  circumstances  of  the  case,  reasonably  use  in 
treating  the  case,"  is  not  erroneous — Boon  v.  Murphy,  108  N.  C.  187; 
12  S.  E.  Rep.  1032. 

They  undertake  to  use  their  best  judgment  in  the  treatment  of  cases. 
For  honest  errors  of  judgment  in  cases  affording  reasonable  grounds  for 
a  difference  of  opinion,  they  are  not  liable. —  Patten  ».  Wlggln,  51  Me. 
694;  Tefft  i;.  Wilcox,  G  Kan.  4G;  Williams  v.  Le  Bar  (Pa.),  21  Atl. 
Rep.  525;  Brown  v.  Purdy,  54  N.  Y.  Super.  Ct.  109. 


424  MORE   THAN   ORDINARY    CARE. 

[342]  A  medical  man  having  once  undertaken  a  case 
cannot  desert  it  without  a  reasonable  cause,  just  as  a  solic- 

"  Ordinary  good  judgment,"  said  the  court  in  Leighton  v.  Sargent  (27 
N.  H.  472),  "  is  necessarily  implied  in  a  physician  of  ordinary  skill,  and  if 
such  share  of  judgment  is  fairly  exercised,  any  risk  from  mere  errors  and 
mistakes  is  upon  the  employer  alone." 

But  if  the  mistake  is  so  gross  as  to  indicate  a  lack  of  ordinary  skill  and 
diligence,  the  physician  will  be  liable. —  West  v.  Martin,  31  Mo.  375. 

Criminal  Liability. —  When  a  physician  acts  in  good  faith,  and  to  the 
best  of  his  ability,  it  has  been  held  that  he  is  not  criminally  liable  for 
the  death  of  a  patient  caused  by  the  medicine  he  administers. —  State  v. 
Schultz,  58  la.  628;  39  Am.  Rep.  187. 

See  Commonwealth  v.  Thompson,  6  Mass.  134.  It  is  otherwise  when  he 
acts  recklessly  and  in  total  disregard  of  approved  methods  of  treatment. 
In  a  recent  case  (Commonwealth  v.  Pierce,  S.  J.  C.  Mass.,  12  Law  Bull. 
292),  where  a  physician  caused  the  death  of  a  patient  by  the  application  of 
kerosene  oil  —  the  patient  having  been  covered  with  flannel  saturated 
with  kerosene  oil  for  two  or  three  days  —  a  conviction  of  manslaughter 
was  sustained.  The  court  said :  "  The  defendant  relies  on  the  case  of 
Commonwealth  v.  Thompson,  6  Mass.  134,  that  to  constitute  man- 
slaughter, the  killing  must  have  been  the  consequence  of  some  unlawful 
act.  If  this  means  that  the  killing  must  be  the  consequence  of  an  act 
which  is  unlawful  for  independent  reason  apart  from  its  likehood  to  kill, 
it  is  wrong.  Such  may  once  have  been  the  law ;  but  for  along  time  it  has 
been  just  as  fully,  and  latterly,  we  may  add,  much  more  willingly  recog- 
nized that  a  man  may  commit  murder  or  manslaughter  by  doing  other- 
wise lawful  acts  recklessly,  as  that  he  may  by  doing  acts  unlawfully, 
for  independent  reason  from  which  death  accidentally  ensues." 

/Standard  of  Skill. —  In  determining  what  is  reasonable  skill  and  care 
to  be  exercised  by  the  physician  or  surgeon,  it  is  not  material  to  which 
school  of  practice  he  belongs  (Corsi  v.  Maretzk,  4  E.  D.  Smith,  1; 
Bowman  v.  Wood,  1  Greene  (la.),  441;  Patten  v.  Wiggin,  51  Me.  597), 
for  the  law  does  not  favor  one  system  more  than  another.  But  it  is  ex- 
pected that  he  shall  use  the  average  care  and  skill  possessed  by  the  pro- 
fession of  that  school.—  Shearman  &  Redfleld  on  Neg.,  §  437.  See 
Forces.  Gregory,  63  Conn.  167;  27  Atl.  Rep.  1116.  And  this  remains 
true  whether  the  person  be  a  clairvoyant  (Nelson  v.  Harrington,  72 
Wis.  591;  40  N.  W.  Rep.  228),  or  a  Christian  scientist.— Wheeler  v. 
Sawyer  (Maine),  15  Atl.  Rep.  67. 

This  standard  may  vary  in  different  localities  and  at  different  times, 
it  may  vary  with  the  character  of  the  disease,  as  well  as  the  temperature 
of  the  patient. 

A  physician  or  surgeon  living  in  the  country  or  an  unsettled  district, 
is  not  usually  as  skilled  as  one  living  in  a  large  city  or  populous  district. 
The  latter  has  better  opportunities  for  observation,  and  better  facilities 


PHYSICIANS    AND   SURGEONS.  425 

itor  [343]  cannot  without  good  cause  abandon  the  suit 
of  his  client  (a). 

((i)  "Shearman  on  Negligence,"  s.  441;  hco  Iloby  r.  Hulll,  :t  It.  A  AUI.  349 
(•ollcllor  abandoning  case). 

for  Obtaining  a  knowledfie  of  the  theory  and  practice  of  medicine  than 
the  former.  Consequently  the  .standard  of  care  in  his  case  is  higher  than 
that  of  tlie  country  practitioner.  And  so  it  may  be  said  generally  that 
this  standard  may  vary  in  different  sections  of  the  country  according  to 
the  advantages  afforded  for  acquiring  a  knowledge  of  the  practice  of  the 
profession.  The  rule  is  well  stated  in  Small  r.  Howard  (128  Mass.  130, 
36  Am.  Kep.  303),  where  It  is  held  that  "  a  physician  Is  bound  to  pos- 
sess the  ordinary  skill  and  experience  of  his  profession  generally  at  the 
time  In  similar  localilles  and  with  similar  opportunities  for  experience." 
It  Is  not  enough,  therefore,  that  the  physician  must  exercise  the  skill 
ordinarily  possessed  by  those  In  the  locality,  "for  there  might  be  but 
few  practicing  in  the  giv^n  locality,  all  of  whom  might  be  quacks.  Igno- 
rant pretenders  to  knowledge  not  pos.scs8ed  by  them."  —  Gramm  v. 
Boener,  56  Ind.  501. 

Since  medical  science  is  all  the  while  progressing,  and  new  and  valu- 
able discoveries  being  made.  In  determining  the  measure  of  skill  to  be 
exercised  by  the  physician,  regard  must  be  had  to  the  advanced  state  of 
the  profession  at  the  time. —  McCandless  v.  McWha,  22  Pa.  St.  261; 
Small  V.  Howard,  128  Mass.  135. 

But  this  does  not  involve  a  knowledge  of  the  most  approved  theories 
and  such  as  are  adopted  by  the  most  skillful  practitioners.  A  chnrge  to 
the  jury,  "  that  If  the  plaintiff  exercised  all  the  knowledge  and  .••kill  to 
which  the  art  had,  at  that  time,  advanced,"  was  held  to  require  too  high 
a  standard  of  professional  duty. —  Slmonds  v.  Henry,  39  Me.  155.  It  Is 
sofllclcent  if  the  course  of  treatment  is  such  as  Is  adopted  at  the  time  by 
the  average  practitioner. —  Tefft  v.  Wilcox,  G  Kan.  C,2. 

From  the  fact  that  other  physicians  might  have  been  successfnl  or 
possibly  exercised  better  judgment  it  does  not  follow  that  appellant  is 
liable  in  damages.— Langford  v.  Jones,  IS  Ore.  307;  22  Pac.  Rep.  1009. 

In  the  important  case  of  Jackson  v.  Burnhara  (1  Colo.  App.  237; 
28  Pac.  Rep.  260;  39  Pac.  Rep.  577),  the  court  said,  •'  *  •  ♦  by  hold- 
ing  himself  out  to  the  world  as  a  physician  and  surgeon,  he  Impllodly 
contracts  that  he  possesses  a  reasonable  decree  of  skill,  learning,  and 
experience  which  good  physicians  and  surgeons  of  ordinary  ability  and 
skill,  practicing  in  similar  localities,  ordinarily  possess;  that,  In  judging 
of  the  proper  degree  of  skill  in  any  given  case,  regard  Is  to  be  had  to  the 
advanced  state  of  the  profession  at  the  time;  that  he  will  use  his  skill 
With  ordinary  care  and  diligence  according  to  the  circumstances  of  the 
case,  and  is  liable  only  for  ordinary  neglect;  that  he  does  not  undertalce 
to  warrant  a  cure,  but  only  to  exercise  a  reasonable  amount  of  knowl- 


426  MORE   THAN   ORDINARY    CARE. 

[344]  Where  the  ground  for  the  allegation  of  negli- 
gence is  a  sreiieral  want  of  that  skill  which  a  medical  mtui 
undertakes  to  possess,  the  defendant  may  give  evidence  of 
his  general  skill;  but  where  there  is  no  doubt  of  his  general 

edge,  skill  and  care  in  diagnosing  the  case  and  in  applying  the  reme- 
dies."—See  Gates  V.  Fleischer,  67  Wis.  504;  30  N.  W.  Kep.  674;  Nelson 
V.  Harrington,  72  Wis.  591 ;  40  N.  W.  Rep.  228. 

The  standard  of  care  may  again  be  affected  by  the  character  of  the 
disease  and  the  temperament  of  the  patient. —  Shearman  &  Redf.  on  Neg., 
§§  438,  439. 

And  while  the  physician  is  bound  to  know  the  consequences  of  admin- 
istering an  anaesthetic,  and  its  effect  upon  the  system,  it  is  held  that  he 
is  not  responsible  for  the  consequences  of  administering  chloroform  to 
a  patient  of  peculiar  temperament  if  such  peculiarity  was  unknown  to 
him. —  Boyle  v.  Winslow,  5  Phila.  (Pa.). 

Where  a  surgeon  advised  the  bathing  of  plaintiff's  fractured  arm  with 
a  decoction  of  wormwood  and  vinegar,  which  treatment  was  condemned 
by  expert  testimony,  it  was  held  that  plaintiff  could  not  recover  dama- 
ges.—Winner  V.  Lathrop,  67  Hun,  511;  22  N.  Y.  S.  Rep.  516. 

Contributory  Negligence. —  The  patent  may  be  barred  of  a  recovery  in 
an  action  for  malpractice  when  he  himself  is  negligent. —  Geiselman 
V.  Scott,  25  Ohio  St.  86;  Chamberlin  v.  Porter,  9  Minn.  260;  McCandless 
V.  McWha,  22  Pa.  St.  26;  Young  v.  Mason,  8  Ind.  App.  264;  35  N.  E.  Rep. 
521;  Becker  u.  Janiski,  27  Abb.  N.  C.  45;  15  N.  Y.  S.  Rep.  675;  Davis  r. 
Spicer,  27  Mo.  App.  279;    Swanson  v.  French  (Iowa),  61  N.  W.  Rep.  407. 

When  he  fails  to  carry  out  the  instructions  of  his  physician  (Geisel- 
man V.  Scott,  25  Ohio  St.  87;  Du  Bois  v.  Decker,  130  N.  Y.  325;  29  N.  E. 
Rep.  313,  affirming  4  N.  Y.  S.  Rep.  768;  Lower  v.  Franks,  115  Ind.  334; 
17  N.  E.  Rep.  630),  or  those  in  charge  of  him  are  negligent. —  Potter  v. 
Warner,  91  Pa.  St.  362. 

But  if  the  negligence  of  the  physician  is  the  sole  cause  of  the  injury, 
the  patient  may,  notwithstanding  his  own  negligence,  recover. — Hibbard 
V.  Thompson,  109  Mass.  289.  And  though  the  disease  is  aggravated  by 
the  improper  treatment  of  those  in  charge  (Wilson  v.  Howard,  39  Vt. 
447),  and  though  the  case  is  given  ovc  r  to  another  who  might  have  dis- 
covered the  mistake  by  the  exercise  of  care  (Hathorn  v.  Richmond,  48 
Vt.  559),  a  recovery  may  be  had  for  the  negligence  of  the  physician;  but 
in  the  former  case  the  fact  of  improper  treatment  by  those  in  charge  may 
be  given  in  evidence  in  mitigation  of  damages.  See  Sanderson  v.  Holland 
39  Mo.  App.  233. 

Miscellaneo^ts.— In  an  action  against  a  firm  of  physicians  for  mal- 
practice, the  Arm  was  held  liable  for  the  act  of  one  causing  the  Injury.— 
Whittaker  v  Collins,  33  Alb.  L.  Jour.  Abst. ;  Hyrne  v.  Erwin,  23  S.  C 
226;  55  Am.  Rep.  15. 


ATT0UNEY8.  IL'7 

skill,  and  the  ground  for  the  allegation  of  negligence  iathut 
in  tlio  particular  case  ho  showed  a  want  of  skill,  evidence  of 
general  skill  will  not  (it  is  said)  bo  received  (6). 


Section  XI. 

Neglect  of  duties  hy  Attorneys. 

Solicitors,  like  physicians,  evidently  undertake  to  bring 
to  the  duties  which  they  have  to  perform  something  more 
than  ordinary  care,  for  they  are  persons  of  skill  and  knowl- 
edge and,  like  physicians,  undertake  matters  of  the  very 
highest  difficulty  and  importance.  It  is  clear  that  ordinary 
neglect  where  so  great  care  is  demanded  becomes  very 
grave,  and  in  the  language  of  some  of  the  judges,  is  "  gross 
negligence  "  (c).  Upon  the  other  hand,  as  the  duty  is  most 
difficult,  it  is  not  every  error  or  want  of  success  that  is  to 
be  attributed  to  negligence,  and  where  it  has  been  at- 
tempted  to  make  a  solicitor  liable  for  some  error  which 
any  careful  man  might  have  fallen  into,  the  judges  have 
[345]  said  that  solicitors  are  only  liable  for  "  gross  negli- 
gence "  ((/). 

(6)  "  Shearinan    on    Negligence,"  8.  they  could  not  ln<]ulrc  into  the  want  of 

442.    In  Scare  f.  I*rentlce,7  Kast,  348,  no  skill. 

evidence  was  given  of  general  want  of  (r)  See  ante,  p.  22,  note  (c)  as  to  the 

skin,  but  the  evidence    relied    on    was  phrase  '*  gross  negligence." 

that  of  negligence  in  the  particular  case  (d)  Laidler  v.  Klliott,  3  IJ.  A  C.  738,  and 

■which  the  jury  negatived  and  the  court  the  cases  there  cited  ;  Elklngton  r.  llol- 

would  not  disturb  the  verdict  although  land,  9  M.  &  W.  059. 
the  Judge  had  misdirected  the  jury  that 

((i)  Negligence. —  While  it  has  beeu  held  that  an  attorney  is  liable- 
only  for  gross  negligence  (Pennington  t;.  Yell,  11  .\rk.  212),  the  weight 
of  authority  is  in  favor  of  the  rule  that  he  is  bound  to  exercise  reasonable 
diligence  and  skill  and  Is  liable  for  ordinary  neglect. —  Cox  r.  Sullivan, 
7  Ga.  U-t;  O'Burr  v.  Alexander,  37  Ga.  IDJ;  Wilson  v.  Russ,  20  Mc.  421; 
Kiddle  V,  Toorman,  3  Pa.  224;  Stevens  r.  Walker,  25  111.  151 ;  Gambert  c. 
Hart,  44  Cal.  542;  Kepler  v.  Jessup  (Ind.  App.),  37  N.  E.  Rep.  655;  Do8- 


428  MORE   THAN  ORDINARY   CARE. 

As  has  been  said  before  (e),  a  high  duty  has  been  under- 
taken which,  upon  the  other  hand,  is  a  difficult  one,  and 
the  question  is,  has  it  been  reasonably  fulfilled? 

(c)  ^7i<e,  Phyalcians. 

ter  V.  Scully,  27  Fed.  Rep.  782;  Morgan  v.  Giddings  (Texas),  1  S.  W. 
Kep.  369. 

"It  is  now  well  settled  by  naany  decisions  of  courts  of  high  author- 
ity, both  of  England  and  of  this  country,  that  every  client  employ- 
ing an  attorney  has  the  right  to  the  exercise,  on  the  part  of  the 
attorney,  of  ordinary  care  and  diligence  in  the  execution  of  the  busi- 
ness intrusted  to  him,  and  to  a  fair  average  degree  of  professional 
skill  and  knowledge;  and  if  the  attorney  has  not  as  much  of  these 
qualities  as  he  ought  to  possess,  and  which,  by  holding  himself  out 
for  employment,  he  impliedly  represents  himself  as  possessing,  or  if, 
having  them,  he  has  neglected  to  employ  them,  the  law  makes  him 
responsible  for  the  loss  or  damage  which  has  accrued  to  his  client  from 
their  deficiency  or  failure  of  application." —  Cochrane  v.  Little,  71  Md. 
323;   18  Atl.  Rep.  700,  701. 

"  Every  person,"  said  the  court  in  Lamphire  v.  Phipos,  8  Car.  &P.  475, 
"  who  enters  into  the  learned  profession  undertakes  to  bring  to  the  exer- 
cise of  )j  a  reasonable  degree  of  care  and  skill." 

It  has  been  held,  however,  that  an  attorney  is  not  liable  where  he  acta 
honestly  and  to  the  best  of  his  ability. —  Lynch  v.  Commonwealth,  16 
Serg.  &  R.  368. 

An  attorney  does  not  guarantee  the  success  of  a  case,  but  he  only  un- 
dertakes to  avoid  errors  which  no  member  of  the  profession  of  ordinary 
prudence  and  skill  would  commit. —  Bowman  v.  Tallman,  27  How.  Pr. 
212;  Gallagher  v.  Thompson,  Wright,  466,  Babbitt  v.  Bumpus,  73  Mich. 
331;  41  N.  W.  Kep.  417. 

He  is  not  therefore  liable  for  errors  of  opinion  on  doubtful  points  of 
law.—  Morrill  v.  Graham,  27  Tex.  646;  Marsh  v.  Whitman,  21  Wall.  178; 
Bowman  v.  Tollman,  27  How.  Pr.  212 ;  Watson  v.  Muirhead,  57  Pa.  St.  161. 

Certainly  not  when  there  is  no  injury.  — Harter  u.  Morris,  18  Ohio 
St.  492;  Johnson  v.  Munro,  3  Hill  (S.  C),  8;  Hinkley  u.  Krug  (Cal.), 
34  Pac.  Rep.  118. 

And  if  he  can  show  that  the  defense  he  was  to  make  was  not  good, 
he  is  only  liable  if  at  all  for  nominal  damages. —  Grayson  v.  Wilkinson, 
13  Miss.  268. 

He  himself  can  not  set  up  the  defense  of  champerty  in  the  contract  in 
an  action  by  his  client  for  negligence. —  Goodman  v  Walker,  30  Ala.  482. 

And  in  an  action  to  recover  money  collected  by  him  he  can  not  defend 
on  the  ground  that  the  claim  upon  which  the  money  was  collected  was 
illegally  acquired  either  by  the  plaintiff  or  his  assignor  who  was  the 
original  owner  of  the  claim.— Fogerty  v.  Jordan,  2  Robt.  319. 


ATTOKNKYS.  429 

A  solicitor  is  liable  for  the  negligence  of  his  agent  (/ ), 
partner  (fj),  or  clerk  (/<)• 

(/)  Simons  f.  Hose,  M  Uca.  11  ;  [post,  D'Arcy,  L.  U.  1  Ex.  6M  ;  3.'>  L.  J.  Kx.  2W; 

p.  4X5].  [post,  p.  fa]. 

ig)  Norton   f.  Cooper,  3  Sm.  A  GIff.  (/i)  "Floydr.  Nanglo,  3  Alk.  WW  ;  Prcht 

573;  SCO  Dundnnnlil  f.  MiiBterinnn,  L.  H.  wick  v.  I'oley,  IS  V.  II.  N.  8.  806;  34  I..  J. 

7  K«|.  504 ;  88  L.  J.  Ch.  350;  IMckford  v.  C.  P.  18i);  [poMt,  p.  4S3.] 

A  rt'taimd  attorney  cannot  withdraw  his  services  without  his  client's 
consent  (McKei^ue  v.  City  of  Janesville,  C8  Wis.  50;  31  N.  W.  Ki-p.  208)  ; 
provided  his  fees  are  tendered  or  secured  to  him  (Gilbert  r.  Williams,  8 
Mass,  54  ;  Cox  v.  Livinglon,  2  Watts  &  S.  103),  but  he  may  withdraw  from 
a  case  If  his  client  insists  on  employing  with  him  another  attorney  with 
whom  he  objects  to  have  personal  or  professional  relations,  and  he  Is 
entitled  to  compensation  for  services  rendered  up  to  the  time  of  with- 
drawal.—Tenney  V.  Berger,  93  N.  Y.  524. 

Having  undertaken  a  case  he  Is  liable  for  negligence  though  he  acted 
pratuitously.  — Stephens  v.  White,  2  Wash.  (Va.)  203;  Whart.  on 
Agency,  §  (iOO. 

In  such  case,  he  is,  it  is  said,  liable  only  for  gross  ncgligrnce  (Shear- 
man &  Redf,  on  Neg,,  §  21G).  Declaration  must  aver  payment  of  fei  s, 
Cavilland  v.  Yale,  8  Cal.  108;  contra,  Eccles  t;.  Stephenson,  3  Bibb,  517); 
and  he  Is  liable  for  acting  without  authority  or  ofliciously  intermeddling 
in  a  case.—  Wharton  on  Neg.,  §  COO;  O'llara  v.  Brophy,  24  IIow.  Pr.  379. 

Whether  he  is  negligent  or  not  is  a  question  for  the  jury. —  Hog;:  r. 
Martin  Riley,  mc  ;  Khines  v.  P:van8,  66  Pa.  St.  192;  Goodman  r.  Waliier, 
80  Ala.  482.     Contra,  Gambert  v.  Hart.  44  Cal.  542. 

Instances  of  Xajligence. — The  following  are  instances  of  negligence  for 
which  attorneys  have  been  held  liable :  — 

Delaying  to  commence  suit  until  a  claim  is  barred  by  the  statute  of 
limitations.— Stevens  v.  Walker,  55  111.  151;  Bruce  v.  Baxter,  7  Ia'Sl.  477. 

Falling  to  record  a  mortgage,  whereby  the  lien  was  lost. —  Scott  r. 
Harrison,  73  Ind.  17;  Miller  v.  Wilson,  24  Pa.  St.  1 14. 

Delaying  the  filing  of  pleadings.— Clark  t'.  Stevens,  r>o  la.  361. 

Falling  to  notify  client  holding  a  mortgage  of  an  impending  tax  .«ale 
of  the  property.— Wain  r.  Beaver,  161  Pa.  St.  605;  29  All.  Kop-  IK- 

Loaning  money  on  worthless  securities. —  Whitney  v.  Marline,  88  N. 
T.  535. 

Omitting  to  Insert  in  writ  the  full  amount  of  client's  claim.— Varnum 
t>.  Martin,  15  Peck.  440. 

Disobeying  the  instructions  of  a  client. —  Cox  r.  Livingston,  2  Watts 
4  8.  103;  Gilbert  v.  Williams,  8  Mass.  51;  Armstrong  t?.  Craig,  18  Barb. 
887. 

Though  the  attorney  acted  in  good  faith  and  did  what  he  supposed  to 
be  for  the  interest  of  his  client.— Cox  v.  Llvtngton,  2  Watts  &  S.  103. 

Failing  to  exercise  care  in  the  examination  of  titles  or  giving  defcc- 


430  MORE   THAN   ORDINARY   CARE. 

The  oblioratioa  of  the  solicitor  is  towards  his  client,  and 
not  towards  a  stranger,  to  whom  he  is  not  responsible  for 
erroneous  advice  (i). 

{i)  Fish  V.  Kelly,  17  C.  B.  N.  S.  194;  if  Q.  B.  286,  and  even  to   the   defendant 

he  nndertakes   to  act  for  any  person  against  whom  he  proceeds;    see   Hub- 

wlthout  authority  he  is  liable   to   that  bard  v.  Phillips,  13  M.   &   W.   702;  An- 

pcrson  for  any  injury  which  arises  from  drews  v.  Hawley,  26  L.  J.  Ex.  323. 
his  conduct;  Westaway  i:  Frost,  17  L.  J. 

tive  advice  in  respect  to  them. —  Oilman  v.  Hovej-,  26  Mo.  280;  Watson 
V.  Muirhead,  57  Pa.  St.  IGl;  Rankin  v.  Schaffer,  4  Mo.  App.  108;  Pinks- 
ton  v.  Arrington,  98  Ala.  489;  13  So.  Rep.  561;  Thomas  v.  Schee,  80  la. 
237;  45  N.  V,\  Rep,  539. 

And  tlie  attorney  cannot  set  up  in  defense  to  an  action  for  overlooking 
a  lien  that  such  lien  was  erroneous  or  of  doubtful  validity. —  Gilman  v, 
Hovey,  26  Mo.  280. 

But  the  liability  does  not  extend  to  third  persons. —  Savings  Bank  v. 
"Ward,  100  U.  S.  195;  Dundee  Mortgage  Co.  v.  Hughes,  21  N.  E.  Rep. 
169;  24  Am.  LavF  Reg.  197. 

An  attorney  has  been  held  liable  for  prosecuting  an  action  too  soon.— 
Hopping  V.  Qujnn,  12  Wend.  517. 

Or  delaying  the  bringing  an  action  until  it  is  too  late. —  Walpole  v. 
Carlisle,  32  Ind.  415;  Fitch  v.  Scott,  4  Mi?s.  314;  Pox  v.  Jones  (4  Tex- 
Ct.  App.  Civil  Cases,  48),  14  S.  W.  Rep.  1007. 

For  neglecting  to  attend  a  trial  and  plead  a  defense. —  Sharp  v.  Mofflt, 
94  Ind.  240;  Henry  v.  Clayton,  85  N.  C.  371;  Norwood  v.  King,  86  N.  C. 
80;  Kerchner  v.  Baker,  82  N.  C.  1C9. 

In  North  Carolina  there  appears  to  be  a  distinction  between  the  "  omis- 
sion of  an  attorney  and  the  personal  inattention  of  the  suitor,"  and  it  is 
said  that  where  a  party  employs  counsel  to  enter  a  plea  and  counsel  neg- 
lects it,  in  consequence  of  which  judgment  is  rendered  against  the  party, 
it  is  "  excusable  neglect,"  and  the  judgment  may  be  vacated  (see  Wynne 
V.  Prairie,  86  N.  C.  73) ;  and  in  New  York  similar  rulings  have  been 
made.— Sharp  v.  Mayor,  31  Barb.  578;  Elston  v.  Schilling,  7  Robt.  74; 
Meacham  v.  Dudley,  6  Wend.  514. 

But  the  general  rule  is  that  the  neglect  of  the  attorney  in  this  respect 
is  the  neglect  of  the  client.— Smith  v.  Tunstead,  56  Cal.  175;  Weeks  on 
Attorneys  at  Law,  §  294,  citing  Freeman  on  Judgments,  §  112;  Austin  v. 
Nelson,  11  Mo.  192;  Kerby  v.  Chadwell,  10  Mo.  392;  Merritt  v.  Putnam,  7 
Minn.  493;  People  v.  Harris,  23  Cal.  127;  Babcock  v.  Brown,  25  Vt,  650; 
Spaulding  ».  Thompson,  12  Ind.  477;  Davidson  v.  HefEron,  31  7fZ.  687; 
Beck  V.  Bellamy,  93  N.  C.  129;  Wood  v.  Wood,  (Arkansas),  27  S.  W. 
Rep.  G41. 

In  a  late  case  (Welch  v.  Challen,  31  Kan.  696;  3  Pac.  Rep.  314)  the 
plaintiff  resided  in  Kansas  and  the  defendants  resided  in  another  State. 


ATTORNEYS .  431 

lie  is  li;il)lc  jilthougli  his  services  are  rendered  gratui- 
tously (^•),  though  ( it  is  said)  only  for  gross  negligence  (/). 

(t)  Donaldson  i:  Holdnnc,  7  CI.  &  K.  Hroagham  said,  "  IIU  conduct  In  volun- 

782.  toerinK  Ills  .sltvIccs  does  Incline  one  to 

(0"  Shearman    on    Negligence,"    s.  think  thiit  llio  llubiUty   Jio   incurred   In 

Hi;  but  it  Is  not   so    stild    In    tlio   caso  point    of   law   Is   somewhat   hard   upon 

above  cited.    Po.fslbly  a  jury  nilKht  bo  lilin;  but  sllll  1  cannot   doubt   he  is  li- 

Induced  to  look  with  Kss  .soverlly  upon  able,"  and  accordingly  coeta   were   not 

tht)  conduct  of  a  solicitor  who  ucteil  );ra-  found  against  him. 
tultouitly.    In  the  cusu  abovu  cited  Lord 

The  defendants  eraployed  an  altormy  in  Kansas  to  flic  an  answer  and  to 
attend  to  the  case,  but  the  attorney  never  flled  an  answer,  and  before  tlie 
time  for  filing  it,  left  the  State  and  did  not  return,  and  judgment  was 
rendered  by  default  against  the  defendants.  The  defemliints  hml  no 
knowledge  of  the  negligence  of  their  attorney,  or  of  the  rendition  of  the 
ju.lgment.  It  was  held  that  though  they  had  a  good  defense,  and  though 
the  attorney  was  insolvent,  that  judgment  should  not  be  vacated.  The 
court,  in  denying  relief,  say:  "The  case  of  Sharp  v.  Mayor,  etc.,  31 
Barb.  578,  and  Elston  v.  Schilling,  7  Robt.  74,  were  not  cases  decided  by 
courts  of  last  resort;  and  the  case  of  Meachara  v.  Dudley,  G  Wend.  514, 
wa«  not  a  proceeding  to  vacate  a  judgment,  but  was  slraply  a  motion  to 
set  aside  a  default." 

Attorneys  have  been  held  liable  for  improperly  dismissing  a  suit. — 
Evans  v.  Watrous,  2  Port.  20G;  Copwood  v.  Baldwin,  25  Miss.  129. 

For  neglecting  to  enter  up  a  judgment. —  Cox  v.  Livingston,  2  Watts 
&  8.  103;  Fitch  v.  Scott,  3  llow.  (Miss.)  314. 

Entering  satisfaction  of  judgment  without  full  payment. —  People  v. 
Cole,  84  111.  327. 

For  suffering  judgment  to  goby  default. —  Benton  u.  Craig,  2  Miss. 
198;  Gaillard  v.  Smart,  G  Cow.  385. 

For  delaying  the  delivery  of  an  execution  to  the  ofllcer,  whereby  the 
right  to  Issue  an  attachment  was  lost. —  Phillips  v.  Bridge,  II  Mass.  24G. 

For  not  seasonably  suing  out  scire  facias  against  bail. —  Dearborn  f. 
Dearborn,  15  Mass.  310. 

For  not  giving  notice  of  the  insufficiency  of  bail. —  McWilllams  r. 
Hopkins,  4  Rawle,  382. 

But  they  are  not  bound  to  move  for  a  new  trial  upon  a  question  of 
l»w.—  Hastings  v.  Ilalleck,  13  Cal.  20:3. 

They  are  not  liable  for  omitting  to  defend  a  suit  if  not  instructed  la 
the  defense. —  Benton  v.  Craig,  2  Mo.  l'.)8. 

Or  for  forbearing  to  bring  suit  where  the  parties  had  agreed  to  leave 
one  of  the  matters  in  dispute  to  arbitration,  the  decision  of  which  would 
render  action  unnecessary. —  Uogg  r.  Martin,  Hiley,  1  ji'.. 

Lialililtj  as  PartHrrs. —  Attorneys  practicing  as  partners  are  equally 
responsible  for  money  collected  and  not  paid  over  though  one  of  them 


432  MORE   THAN   ORDINARY   CAIIE. 

A  solicitor  is  bound  to  exercise  a  reasonable  amount  of 
skill  in  the  selection  of  a  safe  investment  for  his  client, 

had  no  participation  in  the  transaction. —  Dwight  v.  Simon,  4  La.  Ann. 
490. 

So  where  one  does  the  business  of  a  client  unskillfully,  both  are 
liable  to  him  in  damages. —  Warner  v.  Griswold,  8  Wend.  665. 

And  a  dissolution  of  the  firm  will  not  release  the  partners  from  lia- 
bility.— Walljer  v.  Goodrich,  16  111.  341. 

Though  the  negligence  occurs  after  dissolution  and  is  committed  by 
only  one  of  them. — Poole  v.  Gist,  4  McCord,  259;  Waldeck  v.  Brande, 
61  Wis.  579;  21  N.  W.  Rep.  533. 

Money  Collected. —  An  attorney  is  not  liable  for  the  payment  of  money 
collected  by  him  until  after  demand  and  refusal  to  pay  it  over  or  remit 
it  according  to  instruction  or  upon  proof  of  culpable  negligence. —  Cum- 
mins V.  McLean,  2  Ark.  402 ;  Mardis  v.  Shacklef ord,  4  Ala.  493 ;  Claypool 
V.  Gish,  108  Ind.  424;  9  N.  E.  Rep.  382. 

An  engagement  to  pay  it  over  when  collected  to  a  third  party  and  a 
failure  to  do  so  dispenses  with  demand. —  Mardis  v.  Shackelford,  4  Ala. 
493. 

And  a  failure  on  his  part  to  give  notice  within  a  reasonable  time  to  his 
client  of  its  collection  will  dispense  with  a  demand. —  Glenn  v.  Cuttle,  2 
Grant  (Pa.)  Cas.  273;  Denton  v.  Embury,  10  Ark.  228. 

So  does  the  fact  that  the  attorney  claims  to  have  received  the  money 
in  his  own  right. —  Cox  v.  Delraas,  99  Cal.  104;  34  Pac.  Rep.  836. 

Action  for  Fees. —  An  attorney  may  maintain  an  action  for  the  recovery 
of  compensation  for  his  services. —  Foster  v.  Jack,  4  Watts,  339;  Van 
Alta  V.  McKinney,  16  N.  J.  L.  235;  Newman  v.  Washington,  Mart.  & 
Yerg.  (Tenn.)  79. 

He  cannot  recover  for  services  which  through  his  own  neglect  prove 
to  be  of  no  value  to  his  client. —  Nixon  v.  Phelps,  29  Vt.  198;  Cohn  v. 
Heusner,  30  N.  Y.  S.  Rep.  244;  Cranmer  v.  Building  &  Loan  Assoc. 
(S.  D.),  61  N.  W.  Rep.  35. 

Nor  when  he  detains  money  collected,  until  he  is  sued  for  it. —  Bredin 
V.  Kingland,  4  Watts,  420. 

He  cannot  recover  against  his  client  the  costs  of  a  suit  in  which  judg- 
ment is  set  aside  for  irregularity  committed  by  himself  nor  the  costs  of 
opposing  the  motion  to  set  aside  the  proceedings;  nor  can  he  recover  for 
money  paid  for  his  client,  if  it  were  paid  to  satisfy  costs  of  a  judgment 
or  discontinuance  suffered  by  his  ignorance  or  neglect. —  Hopping  v. 
Quill,  12  Wend.  517;  O'Halloran  v.  Marshall,  8  Ind.  App.  394;  35  N.  E. 
Rep.  926. 

But  mere  want  of  success  in  a  suit  will  not  prevent  a  recovery  by  an 
attorney  for  services  unless  there  is  clear  proof  of  mismanagement  on 
his  part.— Brackett  v.  Sears,  15  Mich.  244;  Chain  v.  Hart  (Pa.),  24  All. 
Rep. 442. 


ATTORNEYS.  433 

although    actini?  prnituitously  (?n),  and  it  is  said  that    an 
omission  of  such  skill  is  gross  negligence  (n). 

(m)  Ilourne  r.  Dlgglcs,  2  Chltt.  3n;  (n)  SbiellB  v.  Blackburno,  1  Ily.  Bl. 

Crftlg  r.  WniMon,  8  BeaVs  427.  159. 


Poxoer  to  lieceive  Money. —  An  attorney  has  authority  to  receive  his 
client's  money  In  a  case  in  which  he  is  employed. —  Ililler  v.  Ivy,  37  MIsh. 
431;  Bryans  v.  Taylor,  Wright,  245;  Milk-r  u.  Scott,  21  Ark.  3%;  Buck- 
man  r.  Alhvood,  44  111.  183;  Erwin  v.  Bluke,  8  Pet.  18;  Newmau  v.  Klzer, 
128  Ind.  258;  20  N.  E.  Kep.  1000. 

And  the  amount  of  a  judgment  recovered  by  his  client  and  to  dis- 
charge It. —  Langdon  v.  Potter,  13  Mass.  320;  Brackett  v.  Norton,  4  Conn. 
617. 

But  he  is  not  authorized  to  receive  anything  but  money  In  payment  of 
a  debt  without  express  authority. —  Campbell  v.  Bagley,  19  I^a.  Ann.  172; 
Wright  r.  Daily,  2G  Tex.  730;  Keller  v.  Scott,  10  Miss.  81;  Wilkinson©. 
Uolloway,  7  Leigh,  277;  Givens  v.  Briscoe,  3  J.  J.  Marsh.  534;  Bigler  ». 
Toy,  0.8  la.  C87. 

He  cannot  receive  payment  In  a  depreciated  currency  (Trumbull  v. 
Nicholson,  27  111.  149;  Davis  v.  Lee,  20  La.  Ann.  248;  Chapman  r.  Ewles, 
41  Ala.  103;  nor  wood.— Pitkin  v.  Harris,  09  Mich.  133;  37  N.  W.  Hep.  01. 

He  cannot  receive  the  notes  of  a  third  person  in  payment  or  as  a  col- 
lateral security. —  Jeter  v.  Haviland,  24  Ga.  2."j2. 

He  may  receive  partial  payments  on  a  claim  put  in  his  hands  for  col- 
lection.—Pickett  V.  Bates,  3  La.  An.  627. 

It  has  been  held  that  an  attorney  under  his  general  authority  to  col- 
lect a  note  is  authorized  to  receive  a  payment  of  part  in  money  and  the 
residue  in  a  note  for  a  short  period  of  a  person  of  undoubted  resi>ousi- 
bility.— Livingston  v.  Radcliff,  6  Barb.  201;  contra  Davis  v.  Severance, 
49  Minn.  528 ;  62  N.  W.  Rep.  140. 

(  O  And  attorney  is  liable  for  the  negligence  of  his  agents. —  Riddle  v. 
Hoffman,  3  Pa.  St.  224;  Walker  v.  Stevens,  79  111.  193;  Bradstreet  v. 
Everson,  72  Pa.  St.  124;  Cummins  v.  Heald,  24  Kan.  600;  80  Am.  Rep. 
264;  Mahoney  v.  County  of  Middlesex,  144  Mass.  459;  11  N.  E.  Rep. 
689. 

(h)  And  of  his  clerks.— Power  ».  Kent,  1  Cow.  211;  Birbeck  r.  Staf- 
ford, 14  Abb.  Pr.  285;  Hayward  ».  Goldsburg,  03  la.  430;  Shattuck  v. 
Bill,  142  Mass.  56;  7  N.  E.  Rep.  39. 

(!7)  And  of  his  partners.— Dwight  v.  Simon,  4  La.  Ann.  490;  Mardis 
«.  Sliackleford,  4  Ala.  493;  Livingston  r.  Cox,  0  Pa.  St.  300;  Warn«r  t?. 
Griswoid,  8  Wend.  065;  Morgan  v.  Roberts,  38  111.  05;  Poole  v.  Gist,  4 
McCord,  259. 

An  attorney  is  not  liable  for  thenecligcnce  of  associate  counsel  whom 
he  has  selected  at  the  request  of  his  client,  unless  he  has  participated  in 
It,  or  has  been  guilty  of  negligence  in  selecting  him. —  Weeks  on  Attor- 

28 


434  MORE  THAN  ORDINARY  CARE. 

When  a  solicitor  has  accepted  his  client's  retainer,  he  is 
bound  to  prosecute  the  matter  intrusted  to  him  to  its  ter- 
mination. He  is  not  bound,  indeed,  to  proceed  if  he  can- 
not upon  request  obtain  his  fees  or  security  for  them,  and  if 
he  gives  his  client  reasonable  notice  of  his  intention  to 
throw  up  the  retainer  (o). 

[346]  Generally  speaking,  the  retainer  of  the  solicitor 
is  at  an  end  when  judgment  is  recovered  (p)  ;  but  it  may 

(o)  Wadsworth  v.  Marshall,  2  Or.  &  J.  that  a  solicitor  is  not  bound  to  move  lor 

665;  Hoby  v.  Built,  3  B.  &  Ad.  350;  Van  a  new  trial  npon  a  point  of  law,  nor  to 

Sandau  v.  Browne,  9  Bing.  402.  Institute  new  collateral   suits    without 

(p)  Flower  r.  Bolingbroke,  IStr.  639;  special  Instructions,    Shearman,  s.  227, 

Brackenbnrg  i;.  Pell,  12  East,  588;  Mac-  citing  Hastings  v.  Halleck,  13  Cal.  203; 

beath  v.  Ellis,  4  Bing.  578.    It  is  said  Pennington  v.  Yell,  6  Eng.  (Ark.)  212. 

neys  at  Law,  §  303;  Wharton  on  Agency,  §§  601,  276,  245,  604;  Porter 
V.  Peckhara,  44  Cal.  204;  "Watson  v.  Muirhead,  57  Pa.  St.  247. 

But  an  attorney  has  no  power  as  such  to  employ  assistant  counsel  at 
the  expense  of  his  client. —  Paddock  v.  Colby,  18  Vt.  485, 

Or  to  employ  a  substitute  to  act  in  his  place,  since  the  relation  is  one 
of  personal  confidence  and  cannot  be  delegated  without  the  consent  of 
the  client. —  Hitchcock  v.  McGehee,  7  Port.  556;  Matter  of  Bleakly,  6 
Paige,  311;  Kellogg  v.  ISIorris,  10  Ark.  18. 

Neither  has  a  State  prosecutor  (Gillespie's  Case,  3  Yerg.  325) ;  nor  a 
judge.— Ratcliff  v.  Baird,  14  Tex.  43. 

If  the  client  subsequently  assent  to  the  employment,  or,  with  knowl- 
edge of  the  facts,  does  not  object  to  it,  he  maybe  bound  by  the  substitu- 
tion.—  Johnson  r,  Cunningham,  1  Ala.  249;  King  w.  Pope,  28  Ala.  601; 
Smith  V.  Lipscomb,  13  Tex.  532. 

(p)  The  following  cases  hold  that  an  attorney's  functions  terminate 
by  the  entry  of  judgment. — Ward  v.  Sands,  10  Abb.  N.  Y.  N.  Cas.  60; 
Richardson  v.  Talbot,  2  Bibb,  382;  Jackson  v.  Bartlett,  8  Johns.  361; 
Hinkley  v.  St.  Anthony  Falls,  etc.,  Co.,  9  Minn.  55;  Grames  v,  Hawley, 
50  Fed.  Rep.  319. 

That  the  relation  continues  until  judgment  is  satisfied. —  See  Flanders 
V.  Sherman,  18  Wis.  575;  Gray  r.  Wass,  1  Me.  257;  Nichols  v.  Dennis, 
R.  M.  Charl.  (Ga.)  188;  Cruikshank  v.  Goodwin,  66  Hun,  626;  20  N.  Y. 
S.  Rep.  757;  Hett  w.  Pun  Pong,  18  Can.  S.  C.  R.  290;  Beach  v.  Beach,  6 
Dak.  371;  43  N.  W.  Rep.  701. 

His  authority  is  not  presumed  to  extend  beyond  the  termination  of 
the  suit.— Adams  v.  First  Plain  Bank,23  How.  Pr.  45 ;  Jackson  v.  Bartlett,  8 
Johns.  361;  Langdon-y.  Castleton,  30  Vt.  285;  Richardson  v.  Richardson, 
100  Mich.  364;  59  N.  W.  Rep.  178;  Person  v.  Leathers,  67  Miss.  548;  7 
So.  Rep.  391. 


ATTOKNEYS.  435 

be  renewed  and  the  attorney  will  theu  retain  his  power  to 
bind  his  client  by  a  coniproiniso  (7).  So  if,  aftt-r  judg- 
ment, he  is  authorized  to  do  his  best  to  obtain  the  fruits  of 
the  judgment,  he  has  control  over  the  proceas  of  execution 
and  may  consent  to  the  withdrawal  of  a  fi.  fa.  (r).  He 
may  also  accept  payment  of  the  debt  by  installments,  but 
he  has  no  implied  authority  to  enter  into  an  agreement  to 
postpone  execution  (.s). 

{q)  Butler  V.  Knight,  I^  K.  2  Ex.  109;  (a)  Ix)vegrovo  r.  White,  I>.  K.  6  c;.  P. 

a6  L.  J.  Ex.  CR.  440. 

(r)  Levey  r.  Abbott,  4  Ex.  588. 

It  haw  been  held  that  his  authority  does  not  terminate  with  the  con- 
clasiOD  of  the  case  in  the  lower  court  when  the  client  is  at  a  distance  or 
in  such  a  condition  that  he  cannot  be  consulted;  and  that  it  i.s  his  duty 
to  take  steps  to  have  the  judgment  of  the  lower  court  reviewed,  If  in  his 
opinion  that  is  the  proper  course. —  Weeks  on  Attorneys  at  Law,  §  250; 
Bach  V.  Ballard,  13  La.  Ann.  487;  Bathgate  v.  Pla.skins,  59  N.  Y.  533. 

It  is  terminated  by  the  death  of  his  client. —  Judson  v.  Love,  35  Cal. 
463;  Kisley  v.  Fellows.  10  111.  531;  Campbell  v.  Kincaid,  3  T.  15.  Mon. 
68;  Gleason  v.  Dodd,  4  Mete.  333;  Putnam  v.  Van  Buren,  7  How.  Pr. 
31;  Beach  v.  Gregory,  2  Abb.  Pr.  20G;  Prior  v.  Kiso,  'JG  Mo.  303;  9  8. 
W.  Rep.  898. 

(«)  An  attorney  employed  to  pro.secute  a  suit  has  no  authority  to  dis- 
charge a  judgment  unless  on  full  payment  of  the  amount;  nor  to  assign 
a  judgment  or  execution  (Wilson  v.  Wadleigh,  30  Mc.  4'.»G;  Bosler  v. 
Seabright,  149  Pa.  St  241;  24  Atl.  Rep,  303);  though  client's  long  ac- 
quiesence  confirms  (Gardner  v.  Mobile  &  N.  W.  R.  Co.,  102  Ala.  (;;}5;  15 
So.  Rep.  271);  or  confess  a  judgment  (Pfister  v.  Wade,  09  Cal.  133; 
nor  to  consent  to  set  it  aside  or  agree  to  a  new  trial  (Ilolbert  r.  Mont- 
gomery, 5  Dana,  111);  or  to  consent  to  vacate  a  judgment  pending  on 
appeal  (Quinn  v.  Lloyd,  5  Abb.  Pr.  (n.  s.)  281;  or  to  waive  the  substan- 
tial rights  of  his  client  (Daniels  v.  City  of  London,  58  Conn.  160;  19 
Atl.  Rep.  573;  Dickcrson  v.  Hodges,  43  N.  J.  Eq.  45;  10  Atl.  Rep.  111. 

It  has  been  held  that  an  attorney  may  consent  that  a  judgment 
obtained  by  his  client  upon  default  may  be  vacated  (Classman  v.  .Merkel, 
8  Bosw.  402)  ;  though  his  client  has  instructed  him  to  ihe  contrary. — Head 
B.  French,  28  N.  Y.  285.  And  an  attorney  may,  without  .■special  autliority, 
dismiss  his  client's  suit. —  Simpson  v.  Brown,  1  Wash.  247;  Davis  v. 
Hall,  90  Mo.  G:;9;  3  S.  W.  Rep.  382. 

When  specially  directed  by  his  client  he  nay  sue  out  execution  and 
cause  the  defendant  to  be  arrested  (Ilyama  v.  Michel,  3  Rich.  303);  and 
When  the  plaintiff  lives  at  a  distance  he  may  give  such  direction  to  the 


436  MORE   THAN    ORDINARY    CARE. 

A  solicitor  acting  bona  fide  and  reasonably,  and  not  con- 
trary to  his  client's  direct  commands  (0>  niay  compromise 
a  suit  (w). 

U)  Fray  v.  Voules,  1  El.  &  El.  839.  promise  a  suit,  see  Strauss  v.  Francis,  L» 

(M)  Prestwick  v.  Foley,  34  L,  J.  C.  P.  R.  1  Q.  B.  379;  35  L.  J.  Q.  B.  133. 
189.  As  to  a  counsel's  power  to  corn- 
officer  as  he  thinks  the  interest  of  his  client  requires;  and  his  directions 
to  the  officer,  when  he  gives  him  an  execution,  in  what  manner  to  exe- 
cute the  same  will  bind  his  client. — Kimball  u.  Perry,  15  Vt.  414.  See 
Morgan  v.  Joyce  (N.  H.),  27  Fed.  Rep.  225;  Howell,  Jewett  &  Co.  v. 
Cryl  &  Co.,  50  Mo.  App.  440. 

It  has  been  held  that  he  has  implied  authority  to  take  out  execution  on 
a  judgment  recovered  by  him  for  his  client,  and  to  procure  a  satisfaction 
thereof  by  a  levy  on  lands  or  otherwise,  and  to  receive  the  money  due  on 
the  execution  (Erwin  v.  Blake,  8  Pet.  18;  Union  Bank  v.  Gray,  5  Pet.  99; 
contra,  Fischer  v.  Hethrington,  32  N.  Y.  S.  Rep.  795) ;  to  discharge  a  de- 
fendant from  arrest  on  a  ca.  sa.  issued  by  him;  and  the  officer  is  bound  to 
receive  and  obey  his  instructions  (Scott  u.  Seller,  5  Watts,  235;  Hop- 
kins V.  Willard,  14  Vt.  474)  ;  to  direct  the  sheriff  as  to  the  time  and  man- 
ner of  enforcing  the  execution  (Willard  u.  Goodrich,  31  Vt.  597;  Gorham 
V.  Gale,  7  Cow.  739;  Lynch  v.  Commonwealth,  16  Serg.  &  R.  368);  to 
stay  execution  upon  a  judgment  in  consideration  of  the  promise  of  a 
third  person  to  pay  the  debt,  and  such  promise  is  binding,  although  not 
made  to  the  creditor,  nor  expressly  assented  to  by  him  at  the  time 
(Silvis  V.  Ely,  3  Watts  &  S.  420),  and  to  discharge  a  superior  lien  which 
is  being  enforced  by  levy  on  his  client's  property  which  he  is  managing. — 
Barfleld  v.  McCombs,  89  Ga.  799 ;  15  S.  E.  Rep.  666. 

On  the  other  hand,  it  has  been  held  that  he  has  no  implied  power  to 
stay  an  execution  as  to  a  principal  debtor  so  as  to  discharge  a  surety 
(Union  Bank  v.  Govan,  18  Miss.  333),  to  release  the  sureties  of  hi& 
client's  debtor  (Givens  v.  Briscoe,  3  J.  J.  Marsh.  532),  to  release  prop- 
erty levied  on  under  execution  (Banks  v,  Evans,  18  Miss.  35),  or  to  dis- 
charge the  defendant  from  execution  on  a  ca.  sa.  without  satisfaction 
(Kellogg  V.  Gilbert,  10  Johns.  220),  to  discharge  a  defendant  without 
payment  of  debt  in  full  (Shearman  &  Redf.  on  Neg.,  §  230;  Beers  v.  Hen- 
drickson,  45  N.  Y.  665;  Vail  v.  Jackson,  15  Vt.  314),  and  in  current 
money.— Shearman  &  Redf.  on  Neg.,  §230;  Jeter  v.  Haviland,  24  Ga. 
252;  Trumbull  v.  Nicholson,  17  111.  149;  Huston  v.  Mitchell,  14  Serg.  & 
R.  307. 

(w)  An  attorney  has  no  right  to  make  a  compromise  for  his  client. — 
Uolker  v.  Parker,  7  Cranch,  436;  Abbe  v.  Rood,  6  McLean,  106. 

Without  special  authority.— Vail  v.  Jackson,  13  Vt.  314;  Filby  v. 
Miller,  25  Pa.  St.  264 ;  Davidson  v.  Rozier,  23  Mo.  387 ;  Derwort  v.  Loomer, 
21  Conn.  245;  Smock  v.  Dade,  5  Rand.  639;  Doub  v.  Barnes,  1  Md.  Ch. 


ATTORNEYS.  437 

[347]  The  client  is  not  hound  to  show  that  he  wouKl 
biive  won  his  cause  but  for  the  ne*?Iigence  of  the  solicitor. 

127;  Crotty  V.  Eagle,  35  W.  Va.  143;  13  S.  E.  Rep.  59;  Freeman  v.  Brebm 
(Ind.  App.),  31  N.  E.  Rep,  545;  Hall  Safe  &  Lock  Co.  r.  Harwell,  88 
Ala.  441;  G  So.  Rep.  750;  Phillips  v.  Tuilen,  50  N.  J.  L.  439;  14  Atl. 
Rep.  222. 

Bat  where  a  compromise  was  acquiesced  in  for  years  by  the  prin- 
cipal.—Mayor  V.  Foulkrod,  4  Wash.  C.  C.  511. 

And  where  It  was  not  so  unreasonable  as  to  warrant  the  b«'llef  that 
the  attorney  was  Imposed  on  or  did  not  exercise  his  jud>,'mcnt  fairly  it 
was  held  binding. —  Ilolker  v.  Parker,  7  Cranch,  43C;  Potter  v.  Parsons, 
14  la.  28G. 

And  where  an  attorney  was  a  director  in  a  railroad  company  and  openly 
employed  to  prosecute  a  suit  against  the  road,  it  was  held  that  he  might 
compromise  the  suit  and  recover  his  fees  for  legal  services. —  Christie  v. 
Sawyer,  44  N.  H.  298. 

So  where  it  appeared  reasonable  and  advantageous  though  without 
the  knowledge  of  the  client,  the  court  refused  to  disturb  It.—  Whipple 
V.  Whitman,  13  R.  I.  512,  21  Am.  L.  Reg.  475;  43  Am.  Rep.  42. 

The  following  cases  have  maintained  the  English  doctrine. — Weiland 
V.  White,  109  Mass.  392;  Holmes  v.  Rogers,  13  Cal.  191 ;  Black  v.  Rogers, 
75  Mo.  441;  Rheinhold  r.  Alberti,  1  Binn.  469;  North  Missouri  R.  Co. 
t?.  Stephens,  .36  Mo.  150. 

The  weight  of  authority,  however,  in  this  country  is  that  an  attorney 
has  no  p>ower  to  bind  his  client  by  a  compromise.  —  Weeks  on  Attorney 
At  Law,  §  228;  Preston  v.  Hill,  50  Cal.  43;  see  Whipple  v.  Whitman,  S.  C. 
B.  I.  sitpra;  citing  Ambrose  v.  McDonald,  53  Cal.  28;  Levy  r.  Brown,  66 
MIsa.  83;  Pickett  v.  Merchants'  Nat.  Bank  of  Memphis,  32  Ark.  346;  Wal- 
■den  V.  Bolton,  55  Mo.  405;  Mandeville  v.  Reynolds,  68  N.  Y.  528;  Wad- 
hams  V.  Gay,  73  111.  415;  The  People  v.  Quick,  92  Id.  580.  See  further 
Mackey  v.  Adair,  99  Pa.  St.  143;  North  Whitehall  v.  Keller,  100  Pa.  St. 
105;  Granger  v.  Batchelder,  54  Vt.  248;  41  Am.  Rep.  846;  Isaac  v. 
Zugsmith,  103  Pa.  St.  77;  Armstrong  v.  Ilursl,  39  S.  C.  498;  18  S.  E.  Rep. 
150;  Wlllard  v.  A.  Siegel  Gas- Fixture  Co.,  47  Mo.  App.  1 ;  Dalton  v.  West 
End  St.  Ry.  Co.,  159  Mass.  221;  34  N.  E.  Rep.  261;  Harper  v.  National 
Life  Ins.  Co.,  56  Fed.  Rep.  281 ;  New  York,  N.  H.  &  II.  R.  Co.  v.  Martin, 
158  Mass.  513;  33  N.  E.  Rep.  578;  Watt  v.  Brookover,  35  W.  Va.  323;  13 
8.  E.  Rep.  1007;|  Peters  v.  Lawson,  66  Tex.  336 ;  17  S.  W.  Rep.  734  ;  Repp  ' 
V.  Wiles,  3  Ind.  App.  167;  29  N.  E.  Rep.  441 ;  Martin  v.  Capital  Ins.  Co., 
85  la.  643;  52  N.  W.  Rep.  534 ;  Trope  r.  Kerns,  83  Cal.  563;  33  Pac.  Rep. 
691 ;  Brockley  ».  Brockley,  122  Pa.  St.  1 ;  15  Atl.  Rep.  646;  Vanderlinc  r. 
Smith,  18  Mo.  App.  55;  Roberts  r.  Nelson,  22  Mo.  App.  28;  Kelly  c. 
Wright,  65  Wis.  236;  Wetherbee  v.  Fitch,  117  111.  67;  Taylor  r.  Evans 
(Tex.  Civ.  App.),  29  S.  W.  Rep.  172. 

An  attorney  has   authority,  however,  to  submit  a  cause   to  arbltra- 


438 


MORE  THAN  ORDINARY  CARE. 


It  is  suf-  [348]  ficient  if  he  shows  negligence  operating 
to  produce  the  loss  of  the  cause  (x). 

[349]  Where  an  action  is  brought  by  a  solicitor  for  his 
costs,  he  must  of  course  prove  his  case,  ^.  e.,  he  must  show 
affirma-  [350]  tively  that  he  has  fairly,  carefully,  and 
honestly  discharged  his  duty  (?/). 

[351]  The  question  of  what  in  each  particular  case 
amounts  to  negligence  is  not  instructive,  and  the  cases  are 
collected  together  in  a  note  (z)  for  the  purposes  of  ref- 
erence. 

[352]     A  solicitor  is  not  liable   for  error  in  judgment 


(a;)  Godef  roy  v.  Jay,  7  Bing.  413.  The 
solicitor  may  show  In  answer  that  there 
has  been  no  damage ;  bat  even  then  the 
plaintiff  Is,  as  it  seems,  entitled  to  a  ver- 
dict for  nominal  damages.  See  the  case 
above  cited,  and  Marzettl  v.  Williams, 
IB.  &  Ad.  415,  and  the  cases  as  to 
sheriffs,  posi. 

(y)  Allison  v.  Rayner,  7  B.  &  C.  441. 

(«)  Brumbridge  v.  Massey,  28  L.  J. 
Ex.  59;  Hayne  v.  Rhodes,  8  Q.  B.  342; 
Hopgood  V.  Parkin,  L,  R.  11  Eq.  74; 
Cooper  V.  Stephenson,  21  L.  J.  Q.  B.  292 ; 
Watts  V.  Porter,  3  E.  &  B.  743  (cases  of 
mortgage) ;  Taylor  v.  Gorman,  4  Ir.  Eq. 
Rep.  550  (particulars  of  sale) ;  Potts  v. 
Button,  SBeav.  493  (expenses  of  convey- 
ance) ;  Stannard  v.  Ullithorne,  10  Bing. 
491  (unusual  covenants) ;  Knights  v. 
Quarle8,2  B.  &  B.  102;  Allen  v.  Clark,  1 
N.  R.  358;  Treason  v.  Pearman,3  B.  &  C. 
799;  Wilson  v.  Tucker,  3  Stark.  154  (cases 
of  investigation  of  title) ;  Parker  v.Rools, 
14  C.  B.  691 ;  Elklngton  v.  Holland,  9  M. 
&  W.  659  (cases  of  deeds  not  under  seal, 
or  unattested);  In  re  Bolton,  9  Beav. 
272;  lie  Spencer,  18  W.  R.  Ch.  240  (mis- 
take in  order  of  court);  Reevev.  Palmer, 
5C.  B.  N.  S.  84  (loss  of  deed) ;  Donaldson 
V.  Ilaldane.  7  CI.  &  F.  762;  Dartnall  v. 
Howard,  4  B.&  C.  345  (deposit  of  money) ; 
Coxv.  Leech,  1  0.  B.  N.  S.  617;  Hunter 
V.  Caldwell.  10  Q.  B.  69;  Fraukland  v. 


Cole,  2  Cr.  &  J.  590;  Huntley  v.  Bulwer, 
6  Bing.  N.  C.  Ill ;  Stannard  v.  Ullithorne, 
10  Bing.  491;  Jacaud  v.  French,  12  East, 
317;  Plant  v.  Pearman,  41  L.  J.  Q.  B.  169; 
Long  V.  Oris,  18  C.  B.  610;  Stokes  v. 
Trnmper,  2  K.  &  J.  232;  Williams  v. 
Gibbs,  5  Ad.  &  El. 208;  Kemp  v.  Burt,  4 
B.  &  Ad.  424;  Hart  v.  Frame,  6  CI.  &F. 
193;  Godef  roy  v.  Jay,  7  Bing.  413; 
Simons  v.  Rose,  31  Beav.  1 ;  Russell  v. 
Stewart,  3  Burr.  1787;  Pitt  v.  Yalden,  4 
Id.  2060;  Laldler  v.  Elliott,  3  B.  &  C.  738; 
Russell  V.  Palmer,  2  Wils.  325;  Hill  v. 
Rinney,  4  F.  &  F.  616  (cases of  neglect  or 
ignorance  of  procedure)  ;Reecef.Rlgby, 
4  B.  &  Aid.  202;  Rex  v.  Tew,  Sayer,  50; 
Nash  V.  Swinburne,  3  Man.  &  Gr.  630; 
De  Rouflgny  v.  Peale,  3  Taunt.  484 ;  Dax 
V.  Ward,  1  Stark.  409;  Hawkins  v.  Har- 
wood,  4  Ex.  503;  Swannell  v.  Ellis,  1 
Bing.  347  (cases  of  neglect  in  preparing 
for  trial  or  attending);  Allison  d.  Ray 
ner,  7  B,  &  C.  441  (not  informing  clients 
as  to  costs).  A  curious  case  is  reported 
(Lee  V.  Dixon,  3  F.  &  F.  744)  where  a 
solicitor  brought  an  action  on  behalf  of 
his  client  in  a  superior  court  for  a  very 
small  sum  of  money,  and  the  plaintiff 
had  to  pay  the  costs.  The  action  was 
twice  tried,  the  first  time  with  a  verdict 
for  the  plaintiff,  the  second  with  a 
verdict  for  defendant. 


tion.— Holker  v.  Parker,  7  Cranch,  436;  Markley  v.  Amos,  8  Rich.  468; 
Smith  V.  Barnes,  29  N.  Y.  S.  Rep.  692;  9  Misc.  Rep.  368;  McElreath  v. 
Middleton,  89  Ga.83;  14  S.  E.  Rep.  906. 


ATTOKNKYS.  439 

upon  points  of  new  occurrence,  or  of  nice  or  doubtful  con- 
struction (a). 

[353]  Whore  the  retainer  is  to  do  ii  purticulur  thinf]^,  the 
solicitor  is  liable  for  neglij^ence  only  with  respect  to  thiitpar- 
[354]  ticular  matter;  and  though  his  negligence  in  re- 
spect of  matters  connected  therewith  may  cause  injury  to 
the  client,  ho  is,  it  seems,  not  liable  {b). 

In  a  case  of  unusual  dilEcuity,  or  where  some  new  point 
arises,  the  skill  and  knowledge  which  a  solicitor  is  bound 
to  bring  to  the  execution  of  his  duties  may  be  insufficient; 
and,  however  competent  he  individually  may  be,  he  may 
[355]  desire  to  act  under  the  advice  of  counsel.  If, 
therefore,  upon  such  a  matter  he  fairly  and  fully  lays  a  case 
before  counsel,  and  follows  the  advice  carefully,  he  is  dis- 
charged from  liability  if  it  should  turn  out  that  such  advice 
was  fallacious  (c)  ;  but  upon  matters  which  are  entirely 
within  his  own  province,  and  should  be  known  to  him,  ho 
cannot  shelter  himself  under  the  opinion  of  counsel  (d). 

By  the  Attorneys  and  Solicitors  Act  1870  (e),  agree- 
ments may  be  made  between  solicitors  and  their  clients  with 
respect  to  the  remuneration  of  the  former;  but  by  sect.  7  a 
provision  in  any  agreement  that  the  solicitor  shall  not  bo 
liable  for  negligence,  or  that  he  shall  be  relieved  from  any 
responsibility  to  which  he  would  otherwise  be  subject  as 
such  solicitor,  is  wholly  void.  By  sect.  8,  no  action  can 
be  brought  upon  any  such  agreement ;  but  the  agreement 
may  be  enforced  in  the  manner  indicated  in  the  section. 
It  has  been  held  that  this  section  only  applies  to  prevent 
actions  to  recover  sums  in  lieu  of  costs  after  the  work  is 
done,  and  not  to  an  action  for  refusing  to  allow  a  solicitor 
to  do  the  work  (/).     The  above  statute  does  not  apply  to 


(a)  Qodefroy  v.   Dalton,  6  Bing.  468;  v.  Bnrt,  1  Ncv.  A  Man.  2fl2;  Manning  r 

Laidlerr.  Elliott,  Z  li.  &  C.  738.  Wilkin.  VI  L.  T.  -U'X 

(6)  Langdon  r.  Godfrey,*  F.  &  F.  445.  (</)  Godefroy  r.  Dalton, 0Ulng.4«0.4«9> 

(c)  Andrews  f.  nandley,26  L.  J.  Ex.  (e)  33  4:54  VIcl.  c.  28. 

JSSjFrayv.  Voules,  1  El.  &E1.  839;  Kemp  (/)  Ueee  r.  Willlame,  L.  B.  lOEx.800- 


440  MORE   THAN   ORDINARY    CARE. 

convej'ancing  or  non-continuous  business,  agreements  as 
to  which  are  regulated  by  the  Solicitor's  Remuneration  Act, 
1881  ^g). 

A  patent  agent  is  expected  to  know  the  law  relating  to 
the  practice  of  obtaining  letters-patent,  and  is  answerable 
for  negligence  causing  injury  to  his  client  by  want  of 
knowledge  and  skill  (h). 


[356]     Section  XII. 

Neglect  of  Duties  hy  Bankers.^  <&c. 

Bankers,  in  the  course  of  their  business  as  such,  are 
bound  to  exercise  something  more  than  ordinary  care. 
Like  physicians  and  lawyers,  they  hold  themselves  out 
to  be  persons  of  care  and  skill,  and  they  undertake  most 
important  duties.  But  they  are  only  bailees  for  reward 
of  certificates  intrusted  to  them  for  safe  custody,  upon 
which  they  receive  commission  for  collecting  the  divi- 
dends, or  upon  which  they  have  a  lien  (e),  and  as  such, 
are  liable  for  ordinary  negligence  only  ;  and  where  goods 
are  simply  deposited  with  them,  and  they  make  no 
charge,  and  the  customer  keeps  the  key  of  the  box,  they 
are  merely  gratuitous  bailees;  and,  possibly,  something 
less  than  ordinary  care  is  all  that  is  required  of  them  (k). 
But  with  respect  to  money  placed  in  their  hands  by  their 
customers  for  the  ordinary  purpose  of  banking,  whether 
they  receive  a  profit  or  not,  they  hold  themselves  out  as 
persons  worthy  of  trust,  and  as  persons  of  skill,  and  they 

(<7)  44  &  45  Vlct.  c.  44,  SB.  8, 9.  Scott  v.  National  Bank  of  Chester  Valley, 

(/i)  Lee  V.  Walker,  L.  R.  7  C.  P.  121;  72  Pa.  St.  472;  Lancaster  Bank  v.  Smith. 

41  L.  J.  C .  P.  91  (delay  of  four  months  In  62  Pa.  St.  47,  post.  Chap.  IV.    [They  are 

getting  patent  sealed).  liable  only  for  gross  negligence,  Carlisle 

(i)  In  re  United  Service  Co.,  John-  bank  v.  Graham,  100  U.S. 699;  AUentowu 

son's  Claim,  L.  R.  6  Ch.  212;  40  L.  J.  Bank  v.  Rex,  89  Pa.  St.  306;  Pattlson  v. 

Ch.  286.  Syracuse  Bank,  80  N.  Y.  82;  36  Am.  Kep. 

(A.)  Giblln  V.  McMullen,  L.  R.  2  P.  C.  582,  disapproving  Wiley  v.  Brattleboro 

317;  Foster  V.  Essex  Bank,  17  Mass.  479;  Bank,  47  Vt.  5J6;   .'iO  Vt.  3891. 


BANKEU8.  It] 

must  be  expected  to  use  something  more  than  ordinary 
cure  (/). 

A  l):iiikor  would  be  lia})le  for  noglifjcntly  rcfiisiiit;  to  cash 
his  customer's  cheque  when  he  had  suflicicnt  funds  in 
hand  (m). 

So  bankers  are  liable  for  negligently  paying  forged 
[3.')7]  cheques  (n),  and  there  can  be  little  doubt  that  they 
are  bound  to  exhibit  skill  in  detecting  such  forgeries.  They 
[358]  are  n(jt  liable  if  there  has  been  contributory  neg- 
ligence (o),  but  it  seems  that  such  contributory  negligence, 
in  order  to  be  an  answer  in  an  action  for  negligence  against 
bankers,  [359]  must  be  negligence  in  regard  to  the  par- 
ticular matter  in  dispute,  and  be  in  the  nature  of  an 
estoppel  (p). 

(0  Wlijirton,  s.  510.  (o)  Tonng  v.  Groto,  4  Ring.  253.    The 

(m)  Marzctllv.  Williams,  1  B.  &  Ad.  authority  of   this   cnoo   hnn  boon  very 

415.    This  case  was  not  founded  on  nog-  much  r|UC8tloned,  see  Haxendalo  r.  Ben- 

liffence;   tho  action  wa.s    subsetmcnily  nett,  L.  R.  '.i  Q.  U.  D.  5'2.1. 

f.iundi-d  on  the  contract,  and  a  willful  (/))  Arnold  v.  Oheiiuo  Hank,  L.U.  1  C. 

bronih  was  alloRoi,  but  Taunton,  J,  puts  P.  D.  .'■.7S;4r)  L.J.C.V.K2;  riitont  Safety 

It  on  the  breach  of  duty.  Gnn  Cotton  Co.  f.  WiUon,  VJ  L.  J.  713; 

(ii)  Hank   of   Ireland   f.  Trustees  of  ante,  \k  2. 
Kvans'  Charity.  5  H.  L.  C.  389. 

(0  Firat  Nat,  Bank  v.  Meller,  37  Neb.  600;  55  N.  "W.Rep.  1064;  KeyeB 
V.  Bank,  52  Mo.  App.  323;  First  Nat.  Bank  v.  Fourth  Nat.  Bank,  5G  Ffd. 
Rpp.  9fi7;  G  C.  C.  A.  183;  Wood  River  Bank  r.  First  Nat.  Bank,  3G  Neb. 
744;  55  N.  W.  Rep.  239. 

(p)  In  Leatlier  Manufacturers'  Nat.  Bank  ??.  Morgan  (117  U.  S.  96;  21 
Bep.  481),  tlie  question  was  as  to  tlie  rijiht  of  a  .subscriber  to  dispute  the 
account  rendered  by  the  bank  so  far  as  it  r.liar;;ed  liira  with  certain 
checks  which  he  signed,  but  which  before  payment  were  materially 
altered  by  his  clerk  without  his  knowledge  or  assent.  Upon  several 
occasions,  before  the  alterations  were  discovered  by  the  depositor,  his 
pass-book  was,  at  his  request,  written  up,  a  balance  struck  and  the  book 
rettirned  with  the  checks  as  vouchers  for  the  payments  made  by  the 
bank.  The  court  held  that  it  was  error  to  instruct  the  jury,  that  the 
depositor  was  under  no  duty  whatever  to  the  bank  to  examine  his 
account  so  rendered  in  order  to  ascertain  whether  It  couUiined  errors  to 
his  prejudice;  that  it  was  the  depositor's  duty  to  examine  his  pass-book 
and  the  checks  returned,  and  to  report  errors  to  the  bank,  and  whettur 
he  exercised  that  degree  of  care  which  the  circum.-tanci-s  required  was 
*  questioa  for  the  jury.     See  Wachsmau  v.  Columbia  Bauk,  28  N.  Y.  S 


442  MORE   THAN    ORDINARY    CARE. 

A  manager  of  a  bank  discounting  bills  for  companies  in 
which   he   has   an  interest  without  disclosing  that  fact  is 

Rep.  711;  6  Misc.  Rep.  62;  Janin  v.  London  &  S.  F.  Bank,  92  Cal.  14; 
27  Pac.  Rep.  1100.  Contra,  First  Nat.  Bank  v.  Allen,  100  Ala.  476;  14  So. 
Rep.  335. 

Bankers.  —  Bankers  in  general  pay  forged  checks  at  their  peril.  — 
Levy  V.  Bank  of  United  States,  4  Dall.  234;  Weisser  v.  Dennison,  10 
N.  Y.  68 ;  Frank  v.  Chemical  Bank,  45  N.  Y.  Supr.  Ct.  452 ;  National  Bank 
of  Commonwealth  v.  Grocers'  National  Bank,  35  How.  Pr.  412;  Hardy 
V.  Chesapeake  Bank,  51  Md.  562;  Dodge  v.  National  Exchange  Bank,  20 
Ohio  St.  234;  Birmingham  Nat.  Bank  v.  Bradley  (Ala.),  15  So.  Rep. 
440;  Iron  City  Nat.  Bank  v.  Ft.  Pitt  Nat.  Bank,  195  Pa.  St.  46;  28  All. 
Rep.  195;  33  W.  N.  C.  435;  Anderson  v.  Dundee  State  Bank,  66  Huu, 
613;  21  N.  Y.  S.  Rep.  925;  Hatton  v.  Holmes,  97, Cal.  208;  31  Pac.  Rep. 
1131;  Kummel  v.  Germania  Sav.  Bank,  127  N.  Y.  488;  28  N.  E.  Rep.  398; 
Georgia  R.  &  B.  Co.  v.  Love  &  Good-Will  Soc,  85  Ga.  293;  11  S.  E. 
Rep.  616;  First  Nat.  Bank  v.  State  Bank,  22  Neb.  769;  36  N.  W.  Rep. 
289;  Germania  Bank  v.  Boutell  (Minn.),  62  N.  W.  Rep.  327. 

The  payee  or  holder  maybe  guilty  of  contributory  negligence  and  may 
himself  be  held  to  bear  the  loss. 

As  to  the  duty  of  notifying  the  bank  of  the  discovery  of  the  payment 
of  a  forged  check,  see  United  States  v.  Nat.  Exchange  Bank,  45  Fed. 
Rep.  163;  Wind  v.  Fifth  Nat.  Bank,  39  Mo.  App.  72;  Van  Wert  Nat. 
Bank  v.  First  Nat.  Bank,  6  Ohio  Civ.  Ct.  R.  130. 

Where  the  payee  took  a  forged  check  drawn  payable  to  his  order  from 
a  stranger  without  inquiry,  although  in  good  faith  and  for  value,  indorsed 
it  and  received  payment,  it  was  held  that  the  drawee  might  recover  back 
the  money  paid. —  National  Bank  of  North  America,  etc.  v.  Bangs,  106 
Mass.  441. 

In  another  case  where  a  forged  check  was  presented  to  and  paid  by  a 
bank  other  than  that  on  which  it  was  drawn,  it  was  held  that  the  drawee 
bank  could  recover  back  the  amount  paid,  the  custom  being  for  the  first 
bank  to  make  the  necessary  inquiries  as  to  the  genuineness  of  the  signa- 
ture.— Ellis  V.  Ohio  Life  Ins.  Co. ,4  Ohio  St.  628;  Peoples'  Bankr.  Frank- 
in  Bank,  88  Tenn.  299;  12  S.  W.  Rep.  716. 

A  depositor  in  a  bank  drew  his  check  upon  the  bank  for  a  certain 
amount  payable  to  the  order  of  a  person  named.  The  clerk  of  the  depos- 
itor erased  the  name  of  the  payee  and  obtained  the  money  on  the  check 
from  the  bank.  On  the  ilrst  of  the  following  month  the  bank  returned 
this  check  among  others  to  the  depositor  and  sent  him  a  monthly  state- 
ment which  included  this  check  as  paid;  and  after  another  monthly 
statement  the  depositor  drew  from  the  bank  the  balance  remaining,  ac- 
cording to  this  statement,  and  made  no  objection  to  the  payment  of  the 
check  until  twenty-three  months  after  such  payment.  The  court  held. 
In  an  action  by  the  depositor  against  the  bank  to  recover  the  "amount  of 


BANKERS.  443 

not  guilty  of  negligeuce  if  he  is  acting  in  the  ordinurv 
course  of  business,  and  has  not  exceeded  his  powers  (7;. 

(q)  Bank  of  Upper  Canada  v.  KraUshaw  and  Others,  l^  IC.  1  V.  C.  479. 

the  check,  that  the  defendant  was  not  entitled  to  a  ruling  eh  a  matter 
of  law;  that  if  the  plaintiff  did  not,  after  a  reasonable  opportunity  to 
fxamine  the  checks  returned,  object  to  the  payment  of  the  check  in 
question,  he  would  be  presumed  to  have  ratitled  it;  but  that  the  cjues- 
tion  of  ratillcation  was  for  the  jury;  that  the  plaintiff  was  bound  to  use 
due  diligence  on  discovering  the  forgery  and  was  affected  by  the  knowl- 
edge which  his  clerk  had  who  committed  the  forgery  and  whose  duty  it 
was  to  examine  the  checks  returned  by  the  bank. —  Dana  v.  National 
Bank  of  the  liepublic,  132  Mass.  15G. 

Whether  a  bank  receiving  for  collection  bills,  or  drafts,  payable  at  a 
dlftaui  phice  and  trani-mittiug  them  to  a  bank  at  that  place,  is  liable  for 
the  negligence  of  llie  latter,  is  disputed. 

The  New  York,  New  Jersey  and  Ohio  cases  hold  that  the  llrst  bauk  is 
liable  lor  the  default  of  the  .second,  on  the  ground  of  agency. —  Commer- 
cial Bank  v.  Union  Bank,  19  Barb.  391;  Donner  v.  Madi.-^on  County  Bank, 
6  Ulll,  G-t8;  Reeves  v.  State  Bank  of  Ohio,  8  Ohio  St.  4(!5;  Davey  o.  Jones, 
42  N.  J.  L.  28;  36  Am.  Kep.  605.  See  Power  v.  First  Nat.  Bauk,  G  Mont. 
261;  12Pac.  Rep.  697. 

The  weight  of  the  authority  is  opposed  to  this  view  and  to  the  efitect 
that  when  the  llrst  bauk  selects  proper  and  suitable  agents  for  making 
collections,  it  is  not  liable  for  their  default. —  Dorchester,  etc.,  Bank  v. 
New  Eugland  Bauk,  1  Cush.  177;  East  Iladdara  Bank  v.  Scovil,  12  Conn. 
303;  Daly  v.  Butchers',  etc.,  Bank  of  St.  Louis,  6G  Mo.  94;  .lUiia  Ins. 
Co.  V.  Alton  City  Bank,  25  111.  243;  Guelich  v.  State  Bank,  50  la.  434;  41 
Am.  Hep.  110;  Loui-sville  Bank  i;.  Vickshurg  Bank,  Gl  Miss.  112;  48  Am. 
Kep.  78;  Stacy  v.  Dana  County  Bauk,  12  Wis.  G29;  Citizens'  Bank  v. 
lluwell,  8  Md.  530;  Exchange  Bank  v.  Sutton  Bank,  78  Md.  577;  28  Atl. 
Rep.  663;  First  National  Bank  v.  Sprague,  34  Neb.  318,  51  N.  W.  Rep. 
846. 

And  a  bank  having  placed  a  note  for  protest  in  the  hands  of  Its 
notary,  properly  selected,  is  not  liable  for  his  negligence. —  Baldwin  r. 
Bank  of  Louisiana,  1  I.a.  Ann.  13;  Citizt  ns'  Bank  v.  Howell,  8  Md.  630; 
How.iug  V.  Arthur,  34  Miss.  41 ;  Briiton  v.  Nicolls,  104  U.  S.  757;  conlrit, 
Davey  0.  Jones,  42  N.  J.  L.  28;  3G  Am.  Rep.  505;  Allen  v.  Merchants' 
Bank,  22  Wend.  215. 

But  where  a  note  sent  to  a  bank  for  collection  was  delivered  to  Its 
notary,  who  was  the  attorney  of  the  bank  and  Incompetent  to  make  de- 
mand and  notice  by  law,  and  the  notice  was  not  properly  served,  so  that 
the  indorsers  were  entirely  discharged,  the  bank  was  held  liable  to  the 
owner  of  the  note.— Bank  of  Liudsburg  v.  Ober,  31  Kan,  GOO. 


444  MORE  THAN  ORDINARY  CARE. 

Assuming  it  to  be  the  duty  of  a  banker  not  to  disclose 
the  state  of  his  customer's  account  without  reasonable 
cause  (r),  the  question  of  reasonableness  is  for  the  jury  (s). 


Section  XIII. 

Neglect  of  Duties  by  Stockbrokers. 

Stockbrokers  carry  on  a  business  well  known  to  the  law. 
They  undertake  a  well-known  duty,  viz. :  to  use  all  reason- 
able efforts  to  find  a  purchaser  of  shares,  and  to  make  a 
contract  with  him  in  a  binding  form  on  the  Stock  Exchange, 
and  it  is  no  excuse  to  say  that  by  the  custom  of  a  local 
exchange,  the  contract  is  usually  made  in  a  form  which  is 
not  binding,  for  that  is  not  a  reasonable  custom,  and  the 
customer  is  entitled  to  substantial  damages  if  the  broker 
makes  a  contract  which  is  not  binding,  whereby  the  plaintiff 
suffers  damage  {t). 

(r)  W^hich  it  ia  submitted  is  without  date.    The  fact  or  knowledge  cannot  be 

doabt.  regarded  as  a  coufldentlal  communlca- 

(s)  Hardy  v.  Veasy,  L.  R.  3  Exch.  107;  tion."  Morse  on  Banks,  etc.,  citing  Lloyd 

37L.  J.  Ex.  76;  Foster  r.  Bank  of  London,  v.  Freshfleld,  Car.  &  P.  325,  and  Forbes 

3  F.  &  F.  214,  considered.    An  action  Case,  41  L.  J.  Ch.  467.] 
would  arise  at  all  events  upon  special  (0  Nellson  v.  James,  9  Q,  B.  D.  646. 

damages  shown,  Hardy  v.  Veasy,«Mpra.  It  seems  doubtful  whether  the  plaintiff 

["  But  it  is  unquestionable  that  a  banker  could  recover  more  than  the  price  of 

gammoned  as  a  u-itness,  a  fortiori,  sum-  shares   omitted    to   be  sold,  as  In  the 

raoned  as  garnishee,  must  declare  the  above   case  a  claim  to  be  indemnified 

balance  of   his   customer  at  any  given  against  calls  was  abandoned. 

And  where  the  notary  is  the  president  and  manager  of  the  bank  and  he 
delays  protesting  until  the  indorsers  are  discharged,  he  is  agent  of  the 
bank  so  as  to  render  it  liable. —  Wood  Kiver  Bank  v.  First  Nat.  Bank,  36 
Neb.  744;  56  N.  W.  Rep.  239. 


PUBLIC  ori'icKRs.  445 

[3G0]     Section  XIV. 
Neglect  of  Duties  by  Public  Officers  (u). 

Whoro  the  duties  of  a  public  officer  are  ministerial  he  is 
liable  to  an  action  of  negligence  if  ho  negligently  fails  in 
the  performance  of  them  ;  but  when  tiiey  are  discretionary 
or  judicial  he  is  not  liable  (x).  In  the  latter  case  ho  is, 
indeed,  in  general  liable  in  another  form  of  action  where 
he  has  been  corrupt  or  malicious,  or  has  acted  beyond  the 
scope  of  his  authority  (y).  Sometimes  an  officer  whose 
principal  duties  are  judicial  may  have  to  act  ministerially 
in  some  particular  duty  or  in  some  particular  part  of  his 
judicial  duties,  and  in  respect  of  his  ministerial  duties  he 
IS  liable  to  the  charge  of  negligence  (z). 

Public  officers,  whether  their  duties  are  of  a  general 
public  nature,  or  of  a  (7?ms/-public  nature  (that  is,  who  act 
upon  request  of  individuals  for  reward),  are  liable  for 
negligence,  and  are  not  protected  merely  because  they  act 
bona  fitlp  and  to  the  best  of  their  skill  and  judgment,  but 
ibey  are  bound  to  conduct  themselves  in  a  skillful  manner  (  a ) . 


(tt)  The  most  usual  way  of  compel-  for  instance,  the  keepers  of  a  peniton- 

lln(   public  offlcers    to    perform    their  tlary,  have  been  held,  in  America,  not 

■luUea  is  by  mundamus,  but  this  form  of  liable     for    nopllgenco.    AlamanKO    v. 

remedy  1b  outside  the  scope  of  the  pres-  Albany  County  Supervisors,  "25  Hun  (N 

entwork.  Y.).  551. 

(x)  See  Llnford  v.  FItzroy,  13  Q,  IJ.  (j/)  As  this  Is  beyond  the  scope  of 

140  (admitting  to  ball,  judicial,  not  mln-  this  work,  the  reader  lerefcrrcd  toother 

l»t«rlal);  Ashby  r.  White,  1  ."^mlth,  L.  C.  treatises  as  to  the   liability  of  Judges, 

216,  5lh  ed.,8ee  p.  S.Oa,  and  Culllnr.  Mor-  magistrates,  and  other  ortlciTs,  in  ro- 

ns, 2  Stark. 587  (returning olllccr  at  elec-  spect   of    malicious   and    corrupt  acta, 

tion,  partly  ministerial,  partly  Judicial);  Judges    and    barristers    arc   cxerople<I 

Harry  r.  Arnan  1, 10  A.  &  E.  540  (collector  from  actions  of  negllgonci;  on  the  ground 

of  customs,  minlsterlall ;  Miller  r.  Scare,  of  public  policy.    The  question,  what  in 

2  W.  IJl.   1141   (commissioner  In  bank-  a  ministerial  act,  and  what  a  Judicial  or 

njptcy  Imprisoning,  ministerial);  Shin-  discretionary  act,  will  depend  upon  Iho 

olU  V.  Bumpstead,  G  T.  II.  WG  (manager  circumstanccH. 

of  lottery,  ministerial);  Tozer  v.  Child,  (c)  Shearman,  165;  Ferguson  r.  Kin- 

7E.  i  B.  377 (returning olHcer, Judicial) ;  noul  (Earl  of),  OCl.  &  F.251 ;  Brasyncrr. 

Pickering  r.  James,  L.  U.  8  C.  1'.  4«t;  42  Maclean,  L.  K.  6  I*.  C.  SI'S;  44  L.J.  T.  C.  79. 
I*  J.  C.  I'.  217(prosldingofllcerat  ballot,  (o)  See  Jouos  v.  Bird,  5  B.  A  Aid.  637. 

ministerial).   The  agents  of  the  State,  as 


446  MORE  THAN  ORDINARY  CARE. 

[361]  Public  officers  are  bound  to  exercise  care  in  select- 
ing subordinates,  and  in  superintending  them ;  but  there  is 
a  distinction  between  public  officers  whose  duties  are  of  a 
general  public  nature,  as  officers  or  servants  of  the  Govern- 
ment or  public,  and  public  officers  whose  duties  are  of  a 
quasi-puhVic  nature,  as  persons  called  upon  by  individual 
members  of  the  public  to  do  particular  acts.  The  former 
are  not  responsible  for  the  negligence  of  those  who  are 
their  deputies  or  subordinates,  for  these  are,  like  themselves, 
servants  of  the  Government  or  the  public,  who  is  the  prin- 
cipal or  master  (5),  but  the  latter  class  of  officers  have 
always  been  held  liable  for  the  negligence  of  their  servants. 
Who  are  public  servants  of  the  former  class  so  as  to  exempt 
them  from  liability  for  the  acts  of  their  subordinates,  has 
not  been  always  clearly  determined.  It  was  long  thought 
that  all  commissioners  appointed  by  the  Crown  and  intrusted 
with  the  care  of  public  works  were  public  servants,  and  as 
they  were  formerly  per  sojkiUt/  liable,  if  at  all,  it  was  held  that 
they  were  exempted  from  all  liability ;  but  now  that  such 
bodies  are  only  liable  in  their  corporate  capacity  they  are 
held  liable  for  the  acts  of  those  whom  they  employ  (c). 

If  a  public  officer  intrusts  his  public  duty,  which  he 
ought  to  do  himself,  to  another  person,  who  neglects  to 
perform  the  duty,  the  public  officer  is  liable  to  an  action  for 
negligence  {d).  If  he  is  permitted  by  statute  to  dele- 
ct) Nlcholsonz?.  Moansey,  15East,384  So  that  the  receiver  of  a  messacre  was 
(captain  of  ship) ;  Lane  v.  Cotton,  1  Lord  and  is  without  remedy  (see  Playford  t-. 
iiaym.  646  (post  office) ;  wee  also  White-  U.  K.  Tel.  Co.,  L.  R.  4  Q.  B.  70 ;  38  L.  J.Q. 
Held  V.  Despenser,  2  Cowp.  765.  Per  B.  249;  Dickson  r.  Renter's  Tel.  Co.,  L.  R. 
Blackburn,  J.,  In  Mersey  Docks  r.Gibbs,  2  C.  P.  D.  62;  46  L.  J.  C.  P.  lOi).  The 
L.  R.  1 II.  L.  Ill;  see  also  Reg.  v.  Treas-  sender  would  formerly  have  had  bis 
ury,  L.  R.  7  Q.  B.  387.  Since  the  Govern-  remedy  against  the  company,  but  now  he 
ment  have  undertaken  to  transmit  tele-  has  not.  In  America  It  is  said  that  tele- 
graph messages,  the  above  prlncii)le  graph  companies  are  common  carriers 
applies  to  any  Injury  arisingfromnegll-  (see  Shearman,  ss.  554,  555),  though  not 
gence  of  telegraph  clerks.  It  may  here  liable,  except  for  negligence  or  miscon- 
be  mentioned  that  formerly  the  receiver  duct,  s.  556;  [see  post,  damages], 
of  a  message  could  not  sue  the  company,  (c)  Mersey   Docks   v.  Gibbs,  supra! 

because  he  had  no  privity    with    them,      [and  as  to  liability  of  public  ofUcers  for 
and  he  could  not  sue  the  sender  for  a      acts  of  subordinates,  pos<,  p.  450]. 
mistake  made  by  the  company's  clerk.  (d)  Pickard  v.  Smith,  19  C.  B.  N.  8. 


PUBLIC   OFFICEKS.  447 

[362]  gate  his  duties  to  another,  jind  does  so,  that  other 
becomes  responsible;  but  if  he  continues  to  act,  he  himself 
\fi  responsible  (<). 

It  must  bo  clearly  shown  upon  whom  the  duty  rests 
which  has  been  neglected,  and  the  neglect  of  which  causi'd 
the  damage.  Sometimes  there  is  a  duty  to  superintend 
others  in  the  execution  of  a  duty,  or  to  bte{)  in  to  perfoim 
.such  duty  when  neglected  by  others,  or  to  pay  for  the  per- 
formance of  it  by  others,  but  the  duty  to  do  the  thing  rests 
upon  those  others,  and  they  are  the  persons  primarily 
responsible.  The  damage  flows  immediately  from  their 
neglect  of  their  duty,  and  they  arc  the  persons  liable  for 
.>uch  neglect. 

Where  Navigation  Commissioners  were  by  their  Act  to 
give  notice  to  their  lessee  of  non-repair  of  a  canal,  and  in 
case  of  non-compliance  to  do  the  repairs  themselves,  and 
they  knew  of  a  want  of  repair  and  gave  no  notice,  it  was 
held  they  were  not  responsible,  for  the  injury  did  not  flow 
immediately  from  their  neglect  to  give  notice.  The  pri- 
mary duty  was  on  the  lessee,  who  was  merely  under  the 
superintendence  of  the  commissioners  ( /*).  Where  Im- 
provement Commissioners  had  by  their  Act  power  to  re- 
quest a  waterworks  company  to  ti.\  plugs  and  pipes,  and 
were  to  pay  for  tho  repairs  of  them  by  the  company,  it 
was  held  that  the  company  were  liable,  as  tho  duty  of 
doing  the  repairs  was  cast  upon  them,  although  the  coin- 
missiouers  were  to  pay  for  them  being  done  (7). 

The  question,  what  is  or  is  not  negligence  in  an  officer 
of  a  court  of  justice,  a  notary,  a  siierifl',  &c.,  di'ix-nds  u[)on 
particular  circumstances,  and  although  there  are  many 
cases  in  the  books,  yet  there  is  no  particular  test  or  prin- 
ciple to  be  gathered  from  them.     It  is  of  course  negligence 

4»  (contractor).    Seo   ante,  as  to  this.  (/)  Walker  r.  Goe,  4  H.  A  N.  330. 

iSbeartnan  &  Kcdf.,  §  175.]  iff)  Bayloy  v.  Wolvorliamiilon  Walor- 

(e)  PlckcrliiK  v.  .lames,  L.  U.  8  C.  P.      works  Co..  6  U.  &  N.  241. 
<W;  42  L.  J    C.  P.  -.'17  (prexidliij,'  omcer 
atballut). 


448  MORE   THAN   ORDINARY    CARE. 

to  neglect  a  duty,  but  the  question  whether  there  is  a  duty 
[363]  depends  upon  the  particular  circumstances,  as  for 
instance  the  interpretation  of  the  statute  under  which  the 
oflScer  is  acting,  or  the  usual  practice  of  the  courts,  or  the 
necessities  of  the  case.  If  there  is  no  duty  arising  in  any 
way  to  do  a  thing  there  can  be  no  negligence  in  omitting  to 
do  that  thing  (Ji). 

A  notary  public  appears  to  be  a  person  to  whom  the  laws 
of  America  («),  France  {h),  and  Scotland  (l)  give  large 
powers,  but  in  England  (w)  his  functions  are  more  limited  ; 
but  whether  he  is  employed  as  a  public  officer  to  do  minis- 
terial acts,  or  as  a  private  person  undertaking  to  exercise 
skill  for  reward,  it  is  submitted  that  he  is  bound  to  exercise 
more  than  ordinary  care. 

A  high  degree  of  responsibility  attaches  to  a  sheriff  to- 
wards the  person  who  employs  him  (n). 

His  liability  to  the  owners  of  goods  seized  is  only  that  of 
an  ordinary  bailee,  and  he  is  only  liable  for  ordinary  neg- 
ligence (o). 

A  sheriff's  duties  are  ministerial,  and  the  statutes  impos- 
ing them  usually  inflict  penalties  for  neglect  in  their  per- 
formance, but  as  we  have  seen  {p)  the  imposition  of  such 
penalties  does  not  in  general  relieve  him  from  his  common- 
law  liability  to  an  action  for  negligence. 

Numerous  cases  are  to  be  found  as  to  what  is  or  is  not  a 
negligent  act  on  the  part  of  a  sherifi",  but  each  case  depends 
upon  its  own  particular  circumstances  {q). 

(ft)  Ante,  p,  2.    See  Robinson  v.  Gell,  (m)  Nye    v,   Macdonald,   supra;  and 

12  C.  B.  191.      As    to    the    question  of  see  Rex   v.  Scriveners'  Co.,  10  U.  &  0. 

whether,  where  a  statute  imposes  a  pen-  519.    His   public   duties  are  chiefly  the 

ally  on  an  ollicer  for  neglect,  the  remedy  protesting  of  bills  and  giving  effect  to 

by  action  still  survives,  see  Atkinson  v  mercantile  documents  in  foreign  courts 

Newcastle  Waterworks  Co.;  Couch  v.  by  certificate. 

Steel,  aiUe.  (n)  It  is  said  in  Hodgson  v.  Lynch, 

(i)  See  Shearman  on  Negligence,  as.  Irish  Rep.  5  C.  L.  353,  that  he  is  only  re- 

423—430.  sponsible  for  ordinary  negligence.    See 

(*)  See  Nye  v.  Macdonald,  L.  R.  3  P.  also  Shearman,  s.  530,  n.  4,  sedquare. 

0.  331.  (o)  See  ante,  Ch.  U.,  s.  8. 

(0  Campbell  on  Negligence,  2nd  ed.,  (p)  Ante. 

P-  44.  (q)  Dennis  v.  Whetham,  L.  R.  9  Q.  B. 


PUBLIC   OFFICKUS.  4  1'.' 

[304]  Where  a  sheriff  has  to  take  sureties  on  a  ri?plovin 
])onil  he  must  cxerciso  at  least  a  reason:il)le  care  in  accrpt- 
ini^  them  (r).  The  penalty  of  the  bond  is  the  ineasun; 
of  daniafres  (.<?). 

Ill  ail  action  a<rainst  a  sheriff  for  nejjlij;ence  in  exocutinix 
iiu'snc  process,  evidence,  such  as  would  ho  sufficient  to 
cliar^o  the  original  defendant  with  the  debt,  is   sufficient 

M!>;  4:t  L.J.  Q.  B.  129  (two  writs  frnndn-  Darling,  Hull.  N.  1*.  (iO;  GwUUm  r.  .scho- 

It'Hl,  return  of  vuU<i  Imna  to  llilril  writ);  ley,  (i  Ksp.  1(>0. 

Alien  f.  Carter,  !>.  U.  5  C.  1'.414;  Will-  (s)  Jotfery    r.  liastard.  tupra.     [The 

lams  f.  Rose,  L.  U.  3  Kx.  5;  .37  I..  J.  Ex.  sbcrlfT  is  not  an  lUHunr  of  tin- siillliiuney 

12;  DIgnain  v.  Baily,  L.  U.  :5  Q.  B.  178;  of  the  snretleH  on  a  rcpli-vln  liond;  itU 

37  L.  J.  Q.  B.  71;  Gooilwln  r.  Stone,  L.  .sufllclent  If    he    takes  security  believed 

IL  4  Ex.  331 ;  'SS  L.  J.  Ex.  153  (escapes).  by  him  to  be,  and  nnderstood  by  well 

The  plalntllT  must  .show  actual  damage.  Informed  men  to  bo,  rcbponsible.    It  Is 

Williams    V.    Mostyn,   4    M.    &  W.  145.  his  duty,  however,  to  return  the  bond 

Arrest  on    flnal    process    Is  In  general  with  the  writ,  so  that  the  defendant  may 

abolished,  32  &  33  Vict.  c.  62.  8.  4.  have  an  opportunity  to  obtain  additional 

(r)    Kindal    v.   Blades,  5  Taunt.   225;  security,  and   ho  In  responsible  for  the 

Scott  r.  Wiiitlunaii,  3  Stark.  ItW;  .IcfTery  damages    occasioned    l>y    his  failure  to 

r.  Bastard,  4  Ad.  &  El.  S23;  Sanders  v.  make  such  return.    I'eople  v.  Uoblnson, 

89  111.  159]. 

Public  OflQcers.  —  The  American  cases  are  in  accord  with  the  princi- 
ple.s  announced  in  the  text. 

Public  ofllcers  acting  in  a  ministerial  capacity  are  liable  lor  negli- 
gence.—Kendall  V.  Stokes,  3  IIow.  87;  Tyler  v.  Alfred,  38  Me.  630; 
Robinson  v.  Chamberlain,  34  N.  Y.  389;  Nowell  v.  Wright,  3  Allen,  16fi; 
Whart.  on  Neg.,  §  284;  Bartlett  v.  Crozier,  15  Johns.  loO;  Kennard  v. 
Willmore,  2  Ileisk.  619. 

Public  orticers  acting  in  a  judicial  capacity  are  not  liable  in  a  civil 
action  for  negligence. —  Edwards  v.  Ferguson,  73  Mo.  (JSH;  Yates  r. 
Lansing,  5  Johns.  282;  attlrmed  9  Johns.  30.');  Walker  r.  H:illock,  32  Ind- 
239;  Tompkins  v.  Sands,  8  Wend.  4G2;  Lilienthal  v.  Campbell,  22  L-i. 
Ann.  6(X>;  Burnham  v.  Stevens,  33  N,  H.  247;  Raymond  v.  Billes,  II  Cush. 
■MF,. 

Public  offlcers  whose  duties  are  principally  judicial  may  perform  min- 
Istepial  functions  and  in  respect  to  them  may  be  liabl<!  for  negligence. — 
Tyler  v.  Alfred,  68  Me.  5.30;  Briggs  v.  Waniell,  10  Mass,  356;  Place  r. 
Taylor,  22  Ohio  St.  317;  Fairchild  r.  Keith,  29  Ohio  St.  156;  Harlow  r. 
Birger,  30  111.  425;  Cosby  v.  Commonwealth,  91  Ky.  235;  15  S.  W.  Rep. 
614. 

The  rule  that  officers  invested  with  judicial  or  discretionary  powers 
are  not  liable  for  negligence  has  been  held  to  ajiply  to  judges  of  courts 
(Yates  ».  Lansing,  5  Johns.  282;  9  Johns.  395;  Whart.  on  Neg.,  §  285; 
Cunningham  D.  Bucklin,   8  Cow.  178;  Thompson  r.  Jackson  (la.),  27  L. 

29 


450  MORE  THAN  ORDINARY  CARE. 

against  the  sheriff  to  support  an  averment  that  the  original 
defendant  was  so  indebted  (t). 

(t)  Sloman  v.  Heme,  2  Esp.  695;  Williams  r.  Bridges,  2  Stark.  42;  Gibson  r 
Coggln,  2  Camp.  188. 

R.  A.  92;  Bradley  v.  Fisher,  80  U.  S.  (13  Wall.),  335;  20  L.  ed.  646;  Burn- 
ham  V.  Stevens,  33  N.  H.  247;  Chickering  v.  Robiason,  3  Gush.  543) ;  to 
grand  jurors  for  their  action  on  the  grand  jury  (Turpen  v.  Booth,  56  Cal. 
65;  38  Am.  Rep.  48);  a  town  board  of  equalization  in  determining  the 
value  of  land  (Steele  v.  Dunham,  26  Wis.  393) ;  a  board  of  selectmen 
assessing  property. —  Fawcett  v.  Dole  (N.  H),  29  Atl.  Rep.  693);  a 
board  of  supervisors  (People  v.  Stocking,  50  Barb.  573)  ;  a  board  of 
prison  directors  in  determining  whether  the  exigency  of  a  particular  case 
required  them  to  annul  a  contract  for  the  employment  of  convict  labor 
(Porter  v.  Haight,  45  Cal.  631)  ;  Commissioners  in  bankruptcy  (Cunning- 
ham V.  Bucklin,  8  Cow.  178) ;  to  members  of  the  Legislature,  including 
members  of  municipal  assemblies  (2  Thomp.  on  Neg.  817;  Baker  v. 
State,  27  Ind.  485)  ;  to  wardens  or  inspectors  of  a  penitentiary  in  respect 
to  the  torts  of  a  convict  permitted  by  them. —  Schoettger  v.  Wilson,  48 
Mo.  253. 

Officers  of  elections  are  not  liable  to  an  action  for  refusing  an  elector's 
vote  unless  they  act  corruptly  or  maliciously  (Sherman  &  Redf.  on 
Ncg.,  §  164;  Jenkins  v.  Waldron,  11  Johns.  114;  Bevard  v.  Hoffman, 
18  Md.  479)  ;  they  act  ministerially  in  making  a  return. —  Daltonw.  State, 
43  Ohio  St.  652;  14  Law  Bull.  405. 

Of  the  class  of  officers  who  perform  ministerial  duties  and  who  are 
liable  in  a  civil  action  for  negligence  are  notaries  public  (Commercial 
Bankw.  Barksdale,  36  Mo.  563;  Stacy  w.  Dane  County  Bank,  12  Wis.  629); 
recorders  of  deeds  (Houseman  v.  Girard  Mutual  Building  Association,  81 
Pa.  St.  256)  ;  sheriffs.— Bensel  v.  Lynch,  44  N.  Y.  162;  Kimbro  v.  Edmon- 
son, 46  Ga.  130.     Clerks  of  Courts,  etc. 

A  distinction  is  to  be  noted  as  to  the  liability  of  public  officers  owing 
duties  directly  to  the  State,  and  those  owing  duties  directly  to  individuals. 
The  former  are  punishable  by  indictment,  the  latter  are  liable  for  negli- 
gence in  a  civil  action.— Shearman  &  Redfield  on  Neg.,  §  166;  2  Thomp. 
on  Neg.  825. 

Officers  of  the  first  class  are  not  liable  for  the  negligence  of  their  sub- 
ordinates where  they  have  used  ordinary  care  in  their  selection.  Post- 
masters have  accordingly  been  held  not  liable  for  the  losses  caused  by  the 
negligence  of  those  under  them  (Keeuan  v.  South  worth,  110  Mass.  474; 
Schroyer  v.  Lynch,  8  Watts,  453,  455;  Dunlop  v.  Munroe,  7Cranch,  242); 
and  officers  of  the  army  for  the  negligent  acts  of  subalterns. —  Castle  v. 
Duryea,  32  Barb.  480. 

Mail  contractors  have  been  held  not  liable  for  money  lost  through  the 
negligence  of  their  agents    (Conwell  v.  Voorhees,  13  Ohio,    523);  the 


PUBLIC   OlFK  i:i:.s.  .l')l 

[305]  A  sheriff  is  responsible  for  the  nej^ligrnt  acts  of 
his  deputy,  bailiff,  or  servant,  done  in  execution  of   the 

weight  of  authority  is  that  they  are  liable.— Sawyer  v.  Corse,  17  Gnitt. 
'IM\  Shearman  &  Reilf.  ou  Ncg.,  §  182;  Whart.,  §  29G. 

Public  olllcers  of  the  second  class  are  liable  for  the  Degligence  of  their 
8uborillnati'S. —  Sherman  &  Hedf.  on  Neg.,  §  17(1. 

Jinyj/ci.  — Judges  are  not  liable  for  negligence  in  the  ordinary  per- 
forniauce  of  their  judicial  duties  or,  as  is  sometimes  said,  when  acting 
within  their  jurisdiction. —  Yates  v.  Lansing,  5  Johns.  282;  9  Johns. 
3'J5;  Tompkins  r.  Sands,  8  Weud.  402;  Way  v.  Townseud,  4  Allen,  114; 
Burnham  v.  Stevens,  33  N.  H.  247;  Tracy  v.  Williams,  2  Conn,  llo; 
Whart.  on  Neg.,  §  285;  Ely  v.  Thompson,  3  A.  K.  Marsh.  76;  Wlckware 
C.Bryan,  11  Wend.  545;  Chickering  ».  Robinson,  3  Cush.  543;  Harrison  r. 
Redden,  53  Kan.  2G5;  3G  Pac.  Rep.  325;  Hughes  v.  McCoy,  11  Colo.  691  ; 
19  Pac.  Rep.  G74;  Atwood  v.  Atwater,  43  Neb.  147;  Gl  N.  W.  Rep.   574. 

Though  they  act  corruptly  oroppressively. —  Shearman  &  Redf.  on 
Neg.,  §  157;  Hommert  r.  Gleason,  14  N.  Y.  S.  Rep.  5G8;  Bradley  c. 
Fisher,  7  1).  C.  32,  alllrmed  in  13  Wall.  335;  Merwin  r.  Rogers,  2  N.  Y. 
S.  Rep.  3'.";,  ullirming  1  N.  Y,  S.  Rep.  211. 

But  magistrates  must  not  only  act  within  their  jurisdiction  (Patzach 
V.  Von  Gerichten,  10  Mo.  App.  424);  but  honestly  and  in  gooil  faith.— 
Kibling  V.  Clark,  53  Vt.  379;  Gregorys.  Brown,  4  Bibb,  28;  Bevard  v. 
Hoffman,  18  Md.479;  Downing  i\  Herrick,  47  Me.  4G2;  Home  o.  Pudil, 
88  la.  533;  55  N.  W.  Rep.  485;  McTeer  v.  Le  Baw,  85  Tenn.  121  ;  2  S. 
W.  R^p.  18. 

When  they  have  jurisdiction  thev  are  not  liable  for  an  error  in  their 
Judgment  (Clark  v.  Spicer,  G  Kan.  440),  for  erroneously  refusing  to  gran; 
aaewtrial. —  Jorduu  v.  Hanson,  49  N.  II.  199. 

When  such  an  officer  acts  ministerially  he  is  liable  for  negligence. — 
Tyler  v.  Alfred,  38  Me.  530.  An  action  may  be  maintained  against  a 
jostice  who  having  rendered  judgment  for  the  plaintiff  through  mi.slake 
enters  up  judgment  for  the  defendant  which  the  former  is  obliged  to 
Mtlsfy.— Christopher  v.  Van  Liew,  57  Barb.  17. 

For  Issuing  an  order  of  arrest  without  plaintiff's  undertaking  of  in- 
demnity as  required  by  statute. —  Place  r.  Taylor,  22  Ohio  St.  317. 

For  issuing  a  warrant  of  arrest  without  authority  of  law. —  Truesdell 
V.  Combs,  33  Ohio  St.  18G. 

For  money  received  officially  in  satisfaction  of  a  judgment  —  which  he 
h»s  deposited  in  a  bank  on  his  own  private  account,  and  the  bank  falls 
before  the  deposit  is  withdrawn. —  Shaw  r.  Baunian,  34  Ohio  St.  25. 

Notaries  Public  —  Are  among  the  class  of  officers  who  owe  duties  to 
Individuals  and  who  are  also  liable  for  negligence. 

They  are  liable  for  protesting  a  bill  for  non-payment  before  maturity 
(Stacy  V.  Dane  County  Bank.  12  Wis.  29) ;  f<>r  delaying  demand  of  pay- 
ment until  after  maturity  (Fabens  v.  Mercantile  Bank,  23  Pick.  330),  for 


452  MORE  THAN  ORDINARY  CARE. 

sheriff's  [366]  authority,  but  is  not  responsible  for  the 
acts  not  done  in  execution  of  the  warrant,  unle?;s  the  sheriff 
ratify  the  act  of  his  agent  (u). 

(«)  Woodgate  v.  Knatchbull,  2  T.  R.  of  a  special  bailiff  appointed  at  reqaest 

149;  Crowder  v.  Long,  8  B.    &   C.   605;  of  the  party;  De  Moranda  v.  Dunkin,4 

Drake  v.  Sykes,  7  T.    R.   113;  Martin  v.  T.  R.  119;  Cook  r.  Palmer,  6  B.  &  C.  742; 

Bell,    1    stark.  416;    Jones   v.  Wood,  3  Wood  r.  Finnis,  7  Exch.  372;  [Skinner ». 

Campbell,  228.    He  is  not  liable  for  acts  Wilson,  61  Miss.  90]. 

certifying  an  acknowledgment  without  reading  it  (People  v.  Colby,  39 
Mich.  456) ;  for  omission,  in  receiving  a  nuncupative  will,  to  set  up 
facts  required  by  the  statute. —  Weintz  v.  Kramer,  44  La.  Ann.  35;  10 
So.  Rep.  416. 

For  delegating  their  duties  to  another  (Chenovrith  v.  Chamberlin,  6 
B.  Mon.  60;  Commercial  Bank  v.  Barksdale,  36  Mo.  563),  though  a 
notary. —  Commericial  Bank  v.  Varnum,  49  N.  Y.  123. 

Defectively  taking  and  certifying  a  married  woman's  acknowledgment 
is  a  judicial  act  for  which  the  notary  is  not  liable  unless  he  acted  cor- 
ruptly or  maliciously. —  Henderson  v.  Smith,  26  W.  Va.  829;  53  Am. 
Rep.  139. 

It  has  been  held  that  a  bank  is  liable  for  the  neglect  of  its  notary  in 
making  demand  and  protest  of  a  note. —  Allen  v.  Merchants'  Bank,  22 
Wend.  215. 

But  the  rule  is  generally  that  the  notary  is  directly  responsible  to  the 
holder  or  owner  of  the  note  or  bill. —  Bellemire  v.  Bank  of  U.  S.,  4 
"Whart.  105;  East  Haddam  Bank  v.  Scovil,  12  Conn.  303;  Fabens  v.  Mer- 
cantile Bank,  23  Pick.  330;  Warren  Bank  v.  Suffolk  Bank,  10  Cush.  682; 
Wingate  v.  Mechanics'  Bank,  10  Barr,  104. 

Actual  damages  must  be  alleged  and  proved  before  a  recovery  can  be" 
had  against  a  notary. —  Dwyer  v.  Woulfe,  39  La.  Ann.  423;  3  So.  Rep. 
360;  McAllister  v.  Clement,  75  Cai.  182;  IG  Pac.  Rep.  775. 

Clerks  of  courts  and  recorders  of  deeds  are  liable  for  their  own  negli- 
gence and  that  of  their  deputies. 

They  are  liable  for  failure  to  require  security  for  costs  on  issuing  a 
writ.—  Wright  v.  Wheeler,  8  Ired.  L.  184. 

For  neglecting  to  enter  a  case  on  the  docket. —  Brown  v.  Lester,  13 
Smedes  &  M.  392;  Young  v.  Connelly,  112  N.  C.  646;  17  S.  E.  Rep.  424. 

For  misplacing  papers. —  Rosenthal  v.  Davenport,  38  Minn.  543;  38 
N.  W.  Rep.  618. 

For  failing  to  furnish  a  copy  of  a  bill  of  exceptions  within  a  prope. 
time.— Houston  v.  Wandelohr  (Ky.),  14  S.  W.  Rep.  345. 

For  failing  to  properly  index  a  judgment. —  Redmond  v.  Staton,  116 
N.  C.  140;  21  S.  E.  Rep.  186. 

For  negligence  in  the  entry  and  recording  of  bonds. —  Bevins  t?.  Ram- 
sey, 15  How.  179. 


PUBLIC    OFFICEHS.  453 

[307]  IIo  is  not  liable  for  the  neglect  of  his  predeccH- 
8or  (a). 

Where  it  is  admitted  (y)  that  the  person  employing  the 
sheriir  has    sustained  no    damage,    nominal  damages  can- 

(J-)  Davidson  r.  Seymour,  M.  &  M.  31.       nles  thiil  there  wus  any  damage,  Wyllo 
(j/)  WllllaiiiB   r.    Slostyn,  4    M.  &  W.       r.  nirch,  ■»  Q.  H.  M(i. 
145.    So  also  a  plea  is  good  wbicli  de- 

For  wrongful  entry  of  a  minute  of  payment  and  redemption  of  mort- 
gage.— Appleby  v.  State,  N.  J.  Ct.  Err.,  28  All).  J.  316. 

For  accepting  a  bond  with  lu.sufllcient  sureties. —  McNult  v.  Living- 
ston, 7  Smedes  &  M.  ti41. 

And  where  they  undertake  to  search  for  liens  they  are  liable  for  negli- 
gence.—  McCaraher  v.  Com.,  5  Watts  &  S.  21 ;  Zeigler  v.  Com.,  12  Pa.  St. 
227. 

But  their  liability  extends  only  to  the  party  who  employs  them. — 
Uouseman  v.  Girard  Bldg.  Co.,  81  Pa.  St.  25(j;  and  such  work  is  no  part 
of  their  oIBcial  duly. —  Mallory  v.  Ferguson,  50  Kan.  G.s5;  32  Pac.  Ilep.  410. 

Shrriffa.  —  Sheriffs  are  bound  to  exercise  ordinary  skill  and  dili- 
gence in  the  execution  of  processes  and  are  liable  in  damages  for  the 
consequences  of  their  necligence. 

They  are  liable  for  failure  to  levy  an  execution. —  State  v.  Brophy,  38 
Wis.  413. 

For  taking  insufficient  statutory  bonds  (Berheim  v.  ."Shannon,  1  Tex. 
Civ.  App.  31)5;  21  S.  W.  Kep.  38(5,  following  Jacobs  v.  Dougherty,  7.s  Tex. 
682;  15  S.  W.  Rep.  IGO;  Fraweek  v.  Heard,  97  Ala.  715;  12  So.  Rep.  IGfi; 
People  p.  Lee,  Go  Mich.  557;  32  N.  W.  Rep.  817);  or  falling  to  take  a 
required  bond.— Wilson  v.  Williams,  52  Ark.  360;  12  S.  W.  Rep.  780; 
Lyon  V.  Ilorner,  32  W.  Va.  432;  9  S.  E.  Rep.  875. 

For  neglect  to  attach  property  (Flinn  v.  St.  John,  51  Vt.  334);  for 
making  an  in.sufflcient  levy  of  attachment. —  Dewitt  v.  Oppenheimer,  61 
Tex.  103. 

For  failure  to  return  an  execution  (Noble  v  Wlietstone,  45  Ala.  3)11); 
and  the  bankruptcy  of  the  defendant  in  the  judijini'nt  is  not  a  sufficient 
ezcase  for  the  sheriff  on  a  motion  against  him. —  Id. 

They  are  liable  for  failure  to  return  any  execution  within  the  time 
fixed  by  law.—  People  v.  Johnson,  4  111.  App.  34G ;  Turner  v.  Page,  11 1  N. 
C.  291;  IG  S.  E.  Kep.  174,  followed  in  Boyd  v.  Teague,  111  N.  C.  246;  16 
8.  E.  Rep.  338;  Van  Cleave  v.  Bucher,  79  Cal.  GOO;  21  Pac.  Rep.  954; 
Jett  V.  Shinn,  47  Ark.  373;   1  S.  W.  Rep.  G93. 

Though  their  fees  are  not  prepaid.—  Herr  v.  Atkinson,  40  Ark.  377. 

For  making  an  inadequate  return. —  Harrington  i\  Hill,  51  Vt.  44. 

For  failing  to  secure  enough  to  satisfy  the  reriuirement  of  the  writ. — 
Adams  u.  Spangler,  17  Fed.  Rep.  133. 

Where  a  sheriff  sold  land  at  public  auction  on  execution  and  took  the 


454  MOKE  THAN  ORDINARY  CARE. 

[368]  not  be  recovered  ;  but  whether  nominal  damages 
can  be  recovered  in  default  of  proof  of  substantial  dam- 
ages seems  doubtful  (z). 

(s)  See  note  to  Wylle  v.  Birch,  supra,  ton  v.  Hooper,  6  Q.  B.  468;  Stlmson  v. 
at  page  580;  Barkers.  Green,  2  Bing.  317;  Farnham.L.  R.  7  Q.  B.  175;41L.J.  Q.  B. 
Bales  r.  Wingfleld,2Nev.&M.831;  Clif-       52;  Levy  t;.  Hale,  29  L.J.  C.  P.  127. 

purchaser's  check  for  the  amount  of  his  bid  and  the  check  was  not  paid, 
and  upon  another  sale  a  less  amount  was  bid,  the  sheriff  was  held  liable 
for  the  difference. —  Robinson  v.  Brennan,  90  N.  Y.  208.  So  for  negligent 
irregularity  in  selling  miscellaneous  merchandise. —  Cramer  v.  Oppen- 
stein,  16  Colo.  504;  27  Pac.  Rep.  716. 

They  are  liable  for  failure  to  collect  the  amount  paid  for  property  at 
an  execution  sale. —  State  v.  Spencer,  79  Mo.  314. 

For  money  received  which  they  neglect  or  refuse  to  pay  over  on  de- 
mand.—  Nash  V.  Muldoon,  16  Nev.  404. 

For  making  a  levy  upon  goods  not  the  property  of  the  judgment 
debtor  without  demand,  though  the  goods  were  in  possession  of  the 
debtor,  and  had  previously  been  his  property  and  were  sold  upon  execu- 
tion against  him. —  Masten  v.  Webb,  24  Hun,  90.  See  Russell  v.  Gillespie, 
38  Neb.  461;  56  N.  W.  Rep.  981. 

For  seizing  the  property  of  one  person  on  an  attachment  writ  against 
another,  although  subsequently  it  is  ordered  by  the  court  to  be  sold.  — 
State  V.  Hadlock,  52  Mo.  App.  297;  Smith  v.  Holcomb  (Tex.  Civ.  App.), 
21  S.  W.  Rep.  717;  Wise  v.  Jefferis,  51  Feb.  Rep.  641;  2  C.  C.  A.  432;  7 
U.  S.  App.  275;  Allen  v.  Kirk,  81  la.  658;  47  N.  W.  Rep.  90G. 

For  negligence  in  allowing  a  prisoner  to  escape. —  Crane  v.  Stone,  15 
Kan.  94;  Browning  v.  Rittenhouse,  38  N.  J.  L.  279;  Hopkinson  v.  Leeds, 
78  Pa.  St.  396;  State  v.  Mullen,  50  Ind.  598;  Shaffer  v.  Riseley,  114  N.  Y. 
23;  20  N.  E.  Rep.  630;   16  Civil  Proc.  R.  369. 

A  sheriff  is  not  liable  for  refusing  to  issue  execution,  which  is  not  sup- 
ported by  a  valid  judgment  (Newberg  v.  Munshower,  29  Ohio  St.  617) ;  or 
on  a  satisfied  judgment  (Union  Stone  &  Mach.  Works  v.  Caswell,  50  Kan. 
787;  32  Pac.  Rep.  362);  for  non-service  upon  a  non-resident  when  he 
followed  the  direction  of  the  plaintiff.—  Hamilton  v.  Tyle,  9  Phila.  Rep.  98 

He  has  been  held  not  liable  for  failure  to  make  a  levy  of  an  execution 
for  fourteen  days  after  he  had  received  it,  when  he  had  many  other  mat- 
ters to  attend  to,  and  in  the  absence  of  any  notice  to  him  that  greater 
diligence  was  necessary.  — State  v.  Blanch,  70  Ind.  204. 

While  a  sheriff  ordinarily  has  until  the  return  day  named  within  the 
writ  within  which  to  execute  it  (Shearman  &  Redf.  on  Neg.,  §  521),  if 
he  has  reason  to  apprehend  loss  to  the  creditor  from  delay,  he  must  make 
service  as  soon  as  he  reasonably  can. —  Tucker  v.  Bradley,  15  Conn.  46. 
See  Guiterman  v.  Sharvy,  40  Minn.  183;  48  N.  W.  Rep.  780. 

A  sheriff  is,  in  general,  liable  for  the  acte  of   his  deputy  within  the 


PUBLIC   OFFICERS.  4bb 

[309]  Justices  of  the  peace  arc  protected  in  the  exer- 
cise of  their  discretion  l)y  the  11  &  12  Vict.  c.  44,  s.  4  (a). 

(o)  Pedloy  v.  Davis,  10  C.  U.  N.  S.  492;  30  L.  J.  C.  I'.  Mi;  Nowbold  f.  Coltmao, 
«  Kxota.  189. 

line  of  his  ofllclal  authority.— Luck  v.  Zapp,  1  Tex.  Civ.  App.  528;  21  S. 
W.  Rep.  418;  Frankhouser  v.  Cauuon,  50  Kan.  G21 ;  82  Tac.  Kep.  37'.t; 
State  c.  Dalton  (Miss.),  10  So.  Kep.  578. 

A  sheriff  is  liable  for  the  neglect  of  his  deputy  to  pay  over  money 
(Seavcr  r.  Pierce,  42  Vt.  325;  Norton r.  Nye,  of.  Me.  211),  thoutjh  his  term 
of  office  has  expired  (Koss  v.  Campbell,  I'.t  IIuu,  C15),  for  the  default  of 
the  deputy  in  making  an  Improper  return  of  a  writ. —  Prosser  p.  CooUt,50 
Mich.  202. 

But  he  is  not  liable  for  the  neglect  of  a  deputy,  when  acting  as  a  depaty 
of  a  succeeding  sheriff. —  Blake  v.  Shaw,  7  Mass.  605. 

Nor  for  an  unofllcial  act  of  a  deputy,  and  the  fact  that  the  act  was  done 
by  the  deputy  In  the  belief  that  It  was  within  his  ollicial  power,  and  that 
the  sheriff  on  being  informed  of  it,  approved  of  it  and  afterwards  acted 
upon  it  in  the  same  belief,  will  not  render  the  latter  liable. —  Dorr  r. 
Mlckhy,  IG  Minn,  20. 

Damages. —  In  an  action  against  a  sheriff  for  failure  to  collect  a  debt 
under  an  execution,  the  measure  of  damages  is  the  value  of  defendant's 
property,  If  less  than  the  debt  at  the  time  the  levy  should  have  been 
made  (State  v.  Lowrance,  64  N.  C.  483;  Baker  v.  Bower,  44  Ga.  14; 
Harris  r.  Murfree,  54  Ala.  101),  not  the  amount  of  the  debt. —  State  r. 
Lowrance,  64  N.  C.  483. 

Where  a  sheriff  wroLgfully  levies  on  and  sells  personal  property,  ami 
the  owner  becomes  the  purchaser  at  such  sale,  and  thus  becomes  repos- 
sessed of  his  property,  in  a  suit  by  the  latter  for  the  wrongful  taking  ami 
detention,  the  measure  of  his  damages  may  be  what  it  cost  him  to  regain 
the  property  and  the  sheriff  cannot  object  that  the  sum  so  paid  at  the 
sale  exceeded  the  actual  value  of  the  property. —  Leonard  o.  Maginnls, 
(Minn.),  26  N.  W.  Kep.  733.  See  Rogers  v.  McDowell,  134  Pa.  St.  424; 
21  Atl.  Rep.  166. 

In  the  absence  of  fraud  or  malice,  actual  damages  only  may  be  recov- 
ered against  erring  sheriffs.  —  Ileldenheimer  v.  Sides,  67  Tex.  82;  2  S. 
W.  Rep.  87;  Central  Nat.  Bank  v.  Gallagher,  163  Pa.  St.  456;  30  Atl.  Rep. 
212. 


[370]     CHAPTER  IV. 

NEGLECT  OF   DUTIES    REQUIRING  LESS  THAN  ORDINARY    CARE. 

Amongst  ordinary  duties  requiring  no  particular  skill  or 
care  per  se  {a),  and  requiring  something  less  than  ordinary 
care  by  reason  of  their  being  performed  solely  for  the  ben- 
efit of  another,  are  those  of  — 

(1.)  Gratuitous  depositaries. 

Thus,  where  bankers  (6)  accept  their  customers'  property 
for  safe  custody  gratuitously,  they  are  not  required  to 
exercise,  as  it  should  seem,  even  ordinary  care,  for  they 
are  not  in  this  case  holding  themselves  out  as  persons  of 
skill,  as  they  are  when  they  are  dealing  with  their  cus- 
tomers' balance,  &c.,  and  they  are  not  receiving  any  ben- 
efit by  the  deposit. 

How  far  the  fact  that  the  bailee  lost  his  own  goods  at  the 
time  he  lost  the  bailor's  would  be  evidence  that  he  took 
any  and  what  degree  of  care,  seems  doubtful  (c).  It  is 
probably  some  evidence  (though  not  conclusive)  in  the  case 
of  a  gratuitous  bailee,  that  he  took  that  degree  of  care 
which  such  a  person  is  bound  to  take  i.  e.,  something  less 
than  ordinary  care. 

An  executor  is  with  respect  to  the  assets  of  the  testator 
in  the  position  of  a  gratuitous  depositary  (d).  If  an  article, 
however,  is  deposited  with  a  person,  who  holds  himself  out 

(rt)  If  the   gratuitous    duty    be    per-  317 ;  38  L.  J.  P.  C.  25 ;  Goggs  v .  Bernard,  2 

formed  by  a  person  professing  particular  Raym.  913;  aee  ante. 
skill,  he  will  be  liable  for  ordinary  neg-  (c)  Doorman  v.  Jenkins,  2  A.  &E.258. 

ligcncc  at  the  least;  see  ante.  (_d)  Job  v.  Job.,  6  Oh.  D.  562. 

(6)  Giblin  v.  M'Mullen,  L.  R.  2  P.  C. 

(1)  Gratuitous  depositaries.     See  cases  noted,  ante,  pp.  68,  59. 
(456) 


LESS    THAN    OKDINAKV    «  AUK.  457 

as  ono  who  employs  skill  in  improving  or  ropairiug  it,  ho 
is  hound  to  show  such  skill ;  hut  if  he  doea  not  profess  to 
[371]  omph)y  any  skill,  he  is  only  bound  lo  act  bona  fide 
and  to  the  best  of  his  ability  (c). 

(2.)  Gratuitous  loan — in  the  case  of  the  bailor. 

A  duty  is  contracted  towards  the  borrower  not  to  conceal 
from  him  delects  known  to  the  lender  which  may  make  the 
loan  perilous  to  him  ( /* )  ;  but  as  the  loan  is  for  the  bene- 
fit of  the  borrower,  the  lender  is  only  answerable  for  pjross 
uesrliiience. 

(3.)  Gratuitously  dedicating  a  way  to  the  public. 

Here  the  public  adopting  the  road  must  take  it  as  it  is, 
although  if  the  dedicator  omitted  to  warn  the  public  of  a 
danger  knowu  to  himself  ho  would  Ijeguilt}-  of  gross  negli- 
gence {g). 

It  seems  that  one  who  gratuitously  acts  as  a  solicitor  is 
ouly  liable  for  gross  negligence;  but  it  is  safer  to  say  that 
ho  is  not  responsible  for  so  high  a  degree  of  care  as  it  he 
were  paid  for  his  services  {h). 

So  also  a  volunteer,  though  lie  is  acting  without  any 
request,  yet  if  he  does  so  out  of  mere  benevolence,  and  in 
order  to  avoid  a  probable  loss  to  another,  is  only  bound  to 
show  something  less  than  ordinary  care  (/)• 

So  also  where  a  person  allows  another  to  come  upon  his 
premises,  but  solely  for  the  benefit  of  such  other  person,  it 
would  appear  from  the  cases  that  the  iuviter  is  not  bound 
lo  show  so  much  as  ordinaiy  care  (A),  although  upon  prin- 
ciple, as  I  have  said,  this  is  very  doubtful.  At  all  evi-nts, 
as  regards  a  trespasser,  he  is  only  liable  for  gross  negli- 

(e)  ShlelU  v.   lUnckburne,  1  Hy.  Bl.  ^g)  Itobblns  v.  Jones,  i:.  C.  H.  N.   8. 

169;  DarlnaU  v.  Howanl,  4  B.  &  U.  350;  221 ;  Kishcr  r.  I*row»c,'2  B.  AS.  770;  Kynn 

and  SCO  as  to  HoUcltors  investing  grata-  r.  Wilson, 87  K.  Y.471 ;  A\  Amer.  Uop.  3{M. 

Itonsly,  nnte.  (h)  Sec  s.  12,  Solicitors,  itnU. 

(/)  Per  Coleridge  J.,  Blakemoro   v.  («)  See  Wharton    on    NcgUgcnco,  ». 

Bristol   and  Kxoler  Uy.  Co.,  8  E.  &  B.  334,  and  sect.  d'J. 

iai5;  M'Carlhy  r.  Young,  G  II.  &  N.  320;  (t)  See  anU,  Ch.  II.  8.  2. 
Farrant  v.  Barnes,  11  C.  B.  N.S.  553;31  L. 
J.  C.  V.  137. 


458  MORE    THAN    ORDINARY    CARE. 

gence,  ana  possibly  not  even  for  that,  but  only  for  such 
wanton  mischief  as  amounts  to  willful  wrong  (?). 

[372]  Certainly  where  the  defendant  is  doing  a  gratu- 
itous service  to  the  plaintiff  he  is  only  liable  for  gross  neg- 
ligence, as  where  the  defendant  drove  the  plaintiff 
gratuitously  in  his  carriage  (ni).  It  was  much  argued  in 
Mills  V.  Holton  and  other  cases  (n)  whether  the  defendants 
were  persons  performing  a  gratuitous  service  or  not,  so  a.> 
to  render  them  only  liable  for  gross  negligence.  The 
defendants  (the  landlords)  sent  men  to  repair  the  plaintiff's 
(the  tenant's)  well,  neither  party  being  bound  to  repair. 
The  workmen  negligently  destroyed  the  well.  The  court 
said  it  was  a  question  for  the  jury  whether  the  act  was  done 
gratuitously,  or  whether  the  defendants  had  undertaken  to 
do  the  work  properly.  Martin,  B.,  said  that  if  they  had 
merely  done  an  act  of  kindness  he  thought  they  would  incur 
no  responsibility.  But  if  a  volunteer  undertakes  any  work 
he  must,  as  has  been  seen,  exercise  something  more  than 
ordinary  care  (o). 

(0  Ante.  (ji)  Mills  v.  Holton,  2  H.  &  N.  14. 

(m)  Moffat  V.  Bateman,  L.  R.  3  P.  C.  (o)  Ante. 

115. 

(»/0.  Gratuitous  Carriage. —  Where  freight  is  delivered  to  a  carrier, 
the  acceptance  and  transportation  thereof  according  to  directions,  with- 
out payment  or  promise  of  reward,  make  the  carrier  liable  only  for  gross 
negligence.— Louisville  &  N.  R.  Co.  v.  Jerson  (Alabama),  14  So.  Rep. 
873.    See  Higgins  v.  Cherokee  R.  Co.,  73  Ga.  149. 


[373]  (^IIAl^TKK  V. 

CONTRIBUTORY  NECLKJENCE. 

The  doctrine  of  coutributory  negligence  is  founded  upon 
the  maxim  stated  ante  (a),  "  In  jure  non  remota  causa  sed 
proxima  sppc/adi)',''  and  "  contrihiitory  ncgligt-ncc  "  inlaw 
is  that  sort  of  negligence  on  the  part  of  a  plaintiff  which  is 
the  proximate  and  not  the  remote  cause  of  the  injury.  0( 
course,  in  one  sense  every  negligence  which  contributes  at 
any  time  or  in  any  degree  is  contributory  negligence  ;  but 
the  })hra!>e  has  accjuired  a  technical  or  legal  meaning,  and 
in  the  legal  sense  is  defined  as  above  stated  (h). 

No  doubt,  iti  order  that  the  a])ove  definition  may  be  fully 
appreciated,  the  word  "  proximate  "  must  not  receive  a 
narrow  interpretation,  as  being  limited  merely  to  the  time 
when  the  negligence  occurred  ;  nor  must  it  be  taken  to 
mean  merely  that  which  was  stated,  an(e^  Ch.  I.,  to  be  the 
meaning  of  "  proximate  cause,"  viz.,  such  a  cause  as  would 
probably  lead  to  injury,  and  which  has  led  to  it. 

The  woi'ds  "  j)r()ximato  cause  "  in  the  above  definition 
must  be  taken  to  mean  such  a  cause  that  its  etlect could  not. 
have  been  counteracted  or  avoided  by  the  ordinary  care  of 
the  defendant.  Thus,  if  the  defendant  could  not  by 
ordinary  care  avoid  the  plaintiff's  negligence,  the  plain- 
tiff's negligence  is  the  proximate  cause  of  the  injury. 

The    above    definition    may  therefore  be  expanded  by 

(a)  Ch.  I.,  p.  24,  note  (g).  L.  &  N.  W.  Ry.  Co.,  pntt,  the  ptUng  of 

(6)  Thus,    In    the    "  Donkey  Case,"  the    truck   by  the    plnlnllffs  wae  more 

Davis    r.    Mnnn,    10    M.  >t  W.  546,  post.  remote   from    the    Injury  to  the  tirldfre 

the     plaintiff's    act    of    tcthcriug    tho  than  the 'k'fcndanfs  not  of  punhlng  the 

donkey  was  more  remote  from  the  Injury  truck  hkiiIuj'I  It.    And  sceprr  Wllle*.  J., 

than  the   defendant's  act  of  carelessly  In  Tuff  i-.  Wnrniftn,2C.  B.  X.  S.  757,  In 

driving    over    him,  and    therefore    tho  Ex.  Ch.  5  C.  B.  N.  S.  573. 
plaintiff  could  recover.    So  in  lUdley  v. 

(459) 


460  CONTRIBUTORY   NEGLIGENCE. 

saying  that  "contributory  negligence"  in  law  is  that  sort 
[374]  of  negligence  which,  being  a  cause  of  the  injury,  is 
of  such  a  character  that  the  defendant  could  not  avoid  the 
eflfects  of  it  (c). 

When  the  plaintiff  has  proved,  according  to  his  evi- 
dence, that  the  act  of  the  defendant  has  caused  the  injury 
of  which  he  complains,  the  defendant  in  his  turn  may 
prove  that  the  plaintiff,  by  his  own  act  contributed  to 
cause  the  injury,  and  that  the  plaintiff  might,  by  the 
exercise  of  ordinary  care,  have  avoided  the  consequences 
of  the  defendant's  negligence.  But  such  proof  is  not  in 
itself  sufficient  to  destroy  the  plaintiff's  claim,  and  the 
defendant    must  go  farther  and  show  that  the  plaintiff's 

(c)  Some  of   the  American  Courts  it  in  Illinois  it  would  seem  that  wlien  once 

seems  will   consider   the   comparative  the  plaintiff's  negligence  is  shown  to  be 

negligence  of  the  plaintiff  and  defend-  "  proximate  "  the  degrees  of  negligence 

ant.    If  the  plaintiff   has  been  slightly  of  plaintiff  and   defendant  will  not  be 

negligent,  he  cannot  recover  unless  the  considered.    Chicago  Ky.  v.  Dimlck,  96 

defendant  has  been  grossly  negligent;  111.  42.  * 

Wharton  on  Negligence,  334.    But  even 

(c)  The  difficulty  of  deflning  contributory  negligence  arises  out  of  the 
doctrines  laid  down  in  Davies  v.  Mann,  10  M.  &  W.  546,  and  Butterfleld 
W.Forrester,  11  East,  60. 

In  Davies  v.  Mann,  the  plaintiff  negligently  left  his  donkey  in  the 
highv?ay,  and  defendant  in  broad  daylight  ran  over  and  killed  it.  It 
appeared  that  the  defendant  could,  by  the  exercise  of  ordinary  care,  have 
avoided  the  accident,  and  it  was  held  that  plaintiff  vras  entitled  to 
recover. 

In  Butterfield  v.  Forrester,  defendant  had  placed  an  obstruction  in 
the  highway,  and  plaintiff,  riding  rapidly  at  dusk,  rode  against  it  and 
was  injured.  It  was  charged  that  if  the  plaintiff  could  have  seen  and 
avoided  the  obstruction  by  the  exercise  of  ordinary  care,  there  should 
be  a  verdict  for  the  defendant,  and  the  jury  so  found. 

One  of  these  cases  held  that  if  the  plaintiff  by  the  exercise  of  ordinary 
care  could  have  avoided  the  injury  he  could  not  recover;  and  the  other, 
that  if  the  defendant  could,  by  the  exercise  of  ordinary  care,  have 
avoided  the  injury,  the  plaintiff  could  recover. 

The  seemingly  ridiculous  conclusions  reached  by  these  cases  have 
been  formulated  into  so-called  rules  that  if  the  plaintiff's  negligence  is 
the  proximate  cause  of  the  injury  he  cannot  recover  (Trowt?.  Vermont, 
etc.,  R.  Co.,  24  Vt.  487;  Callahan  v.  Warne,  40  Mo.  131 ;  Wilds  v.  Hud- 
son River  R.  Co.,  24  N.  Y.  430;  Portman  v.  City  of  Decorah  (Iowa),  56 


coNTRinuTOKY  ni:<;ij(;knck.  401 

[STf)]  ncglij^cnco  was  of  such  a  charaotiT  tli:it  the  exercise 
of  ordinary  caro  upon  tho  defendant's  part  would  not  have 

N.  W.  Ri'p.  512;  Gralinni  v.  Pennsylvania  Co.,  139  Pa.  St.  149;  '.'7  \V.  N. 
C.  297;  Stewart  v.  Newport  NewH  &  M.  V.  R.  Co.,  8GVa.  9m8;  11  8.  K. 
K«?p.885;  Glover  v.  Scotten,  82  Mich.  369;  4C  N.  W.  Rep.  93C;  BroHchart 
r.  Tiittle,  69  C<uiu.  1;  21  Atl.  Rep.  925;  Newcomb  t>.  Boston  Protective 
Department,  14G  Mass.  690;   IC  N.  E.  Rep.  555. 

The  contributory  negligence  need  nut  be  the  sole  cause  of  Injury  to 
bar  rt'Covery,  for  it  is  .sullicient  if  it  be  one  of  the  concurring  ertlcliui 
causes.  — North  Birrai-iiiiham  St.  H.  Co.  r.Calderwood,  89  Ala.  247;  7  So. 
Rep.  3C0.  See  Oil  City  Fuel  Supply  Co.  v.  Boundy,  122  Pa.  St.  449;  15 
Atl.  Rep.  8(J5. 

If  the  defendant's  negligence  is  the  proximate  cause  of  the  injury  the 
plaintiff  can  recover.  —  Manly  v.  Wilrainglon,  etc.,  R.  Co.,  74  N.  C. 
655;  Steele  v.  Burkhardt,  100  Mass.  59;  Kerwhacker  r.  Chvi  land,  etc., 
R.  Co.,  3  Ohio  St.  172;  Whalen  v.  St.  Louis,  etc.,  R.  Co.,  GO  Mo.  323; 
Foster  v.  Swope,  41  Mo.  App.  139;  Campbell  v.  .McCoy,  3  Ti-x.  Civ.  App. 
293;  23  S.  W.  R.^p.  34;  Cztzewzka  r.  Benton-Bellefoutaine  Ry.  Co.,  121 
Mo.  201;  25  S.  W.  Rep.  911. 

The  definition  in  the  text  seems  to  be  founded  upon  the  doctrine  of 
Davies  v.  Mann;  that  of  the  American  courts  upon  the  doctrine  of  But- 
tertield  r.  Forrester. 

To  constitute  contributory  negligence,  it  Is  said  there  must  be  a  want 
of  ordinary  care  on  the  part  of  the  plaintiff  and  a  proximate  connection 
between  that  and  the  injury  (2  Thomp.  on  N»g.  1149,  1151),  and  Mr. 
Beach  df  lines  it  to  be  •'  such  an  act  or  omission  on  the  part  of  a  plaintiff 
amounting  to  a  want  of  ordinary  care  as,  concurring  or  co-operating 
with  tlie  negligent  act  of  the  defendant,  is  a  proximate  cause  or  occasion 
of  the  injury  complained  of."  —  Beach  on  Contributory  Negligence,  p.  7. 
citing  Towanda  R.  Co.  v.  Munger,  5  Denio,  2.")5;  49  Am.  Dec.  239;  Dan- 
ner  v.  South  Carolina  R.  Co.,  4  Rich.  L.  329;  55  Am.  Dec.  078;  Balti- 
more, etc.,  R.  Co.  V.  Woodruff,  4  Md.  442;  59  Am.  Dec.  72;  O'Brien  r. 
McGlinchy,  68  Me.  5.52;  Neanow  v.  Ullech,  46  Wis.  590;  Harris  r.  Union 
Pariflc  R.  Co.,  4  McCrary,  454;  Louisville  &  N.  R.  Co.  r.  Hurt,  101  Ala. 
34;  13  So.  R.'p.  130;  O'Connor  v.  North  Trunk.e  Ditch  Co.,  17  Nev.  245; 
30  Pac.  Rep.  882;  McKeller  r.  Tp.  of  Monitor,  78  Mich.  486;  44  N.  W. 
Rep.  412. 

The  conduct  of  the  plaintiff,  to  constitute  contributory  nesllgencc, 
mu.st  have  been  of  a  character  to  have  essentially  contributed  to  the 
injury.  — Phillips  v.  Raihv:iy  Co.,  64  W^is.  475;  25  N.  W.  lU-p-  6<<;  Mont- 
gomery Gas-Light  Co.  i'.  Montgomery  &  E.  Ry.  Co.,  86  Ala.  372;  6  So. 
Rep.  735;  Gerstle  r.  Union  P.  Ry.  Co.,  23  Mo.  App.  361 ;  Chicago,  St.  P. 
&  K.  C.  Ry.  Co.  V.  Chambers,  68  Fed.  Rep.  148.  Thus  In  Somerset  &  C. 
R.  Co.  V.  Galbralth  (109  Pa.  St.  32),  It  was  ht-ld  that  the  fact  that  a  con- 
dactor  of  a  freight  train  who  was  forward  warning  the  engineer  when 


462  CONTRIBUTORY    NEGLIGENCE. 

[376]  prevented  the  plaintiff's  negligent  act  from  causing 
the  injury  (d),  and  this  is  the  sort  of  negligence  which  the 
law  calls  **  contributory  negligence." 

id)  Radley  r.  London  &  North- West-  negligent,  defendant's  driver  conld  have 

em  Ry.  Co.,  L.  R.  1  App.  Gas.  754;46L.  J.  avoided).    See  a  curious  case  of  Button 

.573  (pushing  an  overloaded  track  against  v.  Hudson  River  Co.,  18  N.  Y.  258,  where 

the  top  of  the  bridge);  Davies  V.  Mann,  defendant   ran   over   a    drunken   man, 

10  M.  &  W.  646  (donkey  case) ;  Tuff  v.  when  he  might,  by  ordinary  care,  have 

Warman,  5  C.  B.  N.  S.  573  (steamer  run-  avoided  him.    Gunter  v.  Wicker,  85  \. 

ning  down  a  barge);  Springett  v.  Ball,  C.  310;  Colorado  Ry.  v.  Holmes,  5  Col. 

"4  F.  «&  F.  472  (foot  passenger  crossing,  197. 

killed,  while  the  rule  of  the  company  required  him  to  remain  in  the 
middle  of  the  train,  did  not  preclude  recovery  against  the  company. 
See  Grabrues  v.  Klein  (.Md.),  31  Atl.  Rep.  504;  Southern  Bell,  etc.,  Co. 
V.  Watts,  66  Fed.  Rep.  460. 

The  rule  announced  in  Davies  v.  Mann,  is,  however,  not  ignored  by 
American  courts.  It  is  applied  in  cases  where  the  defendant,  after  hav- 
ing become  aware  of  the  plaintiff's  negligence,  fails  to  exercise  ordinary 
care  in  avoiding  it.  — 2  Thompson,  1157;  Earlier  v.  Savage,  45  N.  Y.  191, 
194;  Brown  v.  Lynn,  31  Pa.  St.  510;  Northern,  etc.,  R.  Co.  v.  Price,  29 
Md.  420;  Locke  v.  First  Div.,  etc.,  R.  Co.,  15  Minn.  350;  Nelson  v.  Atlan- 
tic, etc.,  R.  Co.,  68  Mo.  593;  O'Keefe  v.  Chicago,  etc.,  R.  Co.,  32  la.  467; 
Morris  v.  Chicago',  etc.,  R.  Co.,  45  la.  29;  Eckert  v.  St.  Louis,  etc.,  R. 
Co.,  13  Mo.  App.  352;  Welsch  v.  Jackson  Co.  Horse  R.  Co.,  81  Mo.  466; 
Baltimore  Traction  Co.  v.  Wallace,  77  Md.  435;  26  Atl.  Rep.  518;  Pan- 
nell  V.  Nashville,  etc.,  R.  Co.  (^ Alabama),  12  So.  Rep.  236;  Pope  v.  Kan- 
sas City  Cable  Ry.  Co.,  99  Mo.  400;  12  S.  W.  Rep.  891 ;  Illinois  Central 
R.  Co.  V.  Larson,  42  111.  App.  264;  Denver  &  B.  P.  Rapid  Transit  Co.  v. 
Dwyer,  20  Colo.  132;  36  Pac.  Rep.  1106;  Richmond  &  D.  Ry.  Co.  v.  Yea- 
mans,  86  Va.  860;  12  S.  E.  Rep.  946;  Hays  v.  Gainesville  St.  Ry.  Co.,  70 
Tex.  602;  8  S.  W.  Rep.  491;  Union  Pac.  Ry.  Co.  v.  Mertes,  39  Neb.'448; 
58  N.  W.  Rep.  105,  affirming  35  Neb.  254;  52  N.  W.  Rep.  1099;  Carrico  v. 
West  Virginia,  etc.,  Ry.  Co.,  35  W.  Va.  389;  14  S.  E.  Rep.  12. 

As  where  persons  have  trespassed  upon  railroad  tracks  and  have  been 
injured  by  the  negligence  of  the  company's  servants,  w.ho  could  by  the  ex- 
ercise of  ordinary  care  have  avoided  the  injury. —  Whart.  on  Neg.,  §  329; 
2Thomp.  on  Neg.  1156;  Mobile  &  O.  R.  Co.  v.  Watly,  69  Miss.  145,  13 
So.  Rep.  825;  Christian  v.  Illinois  Cent.  R.  Co.,  71  Miss.  237;  15  So. 
Rep.  71;  Richmond  &  D.  R.  Co.  v.  Didzoneit,  1  App.  D.  C.  482;  St. 
Louis,  L  M.,  etc  ,  R.  Co.  v.  Wilkerson,  46  Ark.  513;  Sabine  &E.  T.  Ry. 
Co.  V.  Hanks,  73  Tex.  323;  11  S.  W.  Rep.  377.  In  Union  Pac.  R.  Co. 
V.  Mertes,  supra,  plaintiff  was  not  only  unlawfully  on  the  track  but  was 
negligent  in  not  looking  for  an  engine  before  crossing  the  track,  and  it 
was  held  that  he  was  entitled  to  recover,  the  engineer  having  failed  to 
stop  his  engine  so  as  to  avoid  the  accident,  as  he  could  have  done. 


toMrAi:ATivi-:  negligence.  4<)3 

[377]  Another  and  u  tlifforent  doctrine  hu8  soniolimos 
prevailed,  viz.,  that  the  plaintiff  must  bo  puniahed  for  his 

Where  cattle  have  been  suffered  to  stray  upon  railroad  tracks  and  have 
been  run  over  by  passing  trains.— 2  Tlioinp.  on  Ne^.  1158;  Cleveland, 
etc.,  K.  Co.  V.  Elliott,  4  Ohio  St.  i7r>;  Trow  v.  Vermont  U.  Co.,  LM  Vl.  i'H  ; 
Isbell  V.  N.  Y.,  etc.,  H.  Co.,  27  Conn.  li'J3;  Cleveland,  C.  C.  &  S,  L.  K. 
Co.  V.  Ducharrae,  49  111.  App.  520;  Louisville  &  N.  K.  Co.  v.  Klce  (Ala- 
bama), 14  So.  Kep.  (J.T.);  Jcwett  r.  Kiinsns  City,  etc.,  Hy.  Co.,  50  .Mo.  App. 
647.  So  as  to  trespaasinj;  dog. —  St.  Louis,  A.  &  T.  Ky.  Co.  v.  Hanks,  7« 
Tex.  300;   14  S.  W.  Kt-p.  G'Jl. 

Comparative  Neerligence. —  As  seen,  uutv,  p.  24,  the  tendency  of  the 
American  decisions  has  been  strongly  towards  abrogating  the  common 
law  distinctions  of  degrees  of  negligence.  It  follows,  therefore,  tliat 
the  doctrine  of  comparative  negligence  has  been  frequently  denied  in 
the  courts  of  this  country. 

Al'ibanui. — The  doctrine  of  comparative  negligence  does  net  obtain 
in  this  Slate. —  Gothard  u.  Alabama,  etc.,  R.  Co.,  G7  Ala.  114;  Mont- 
gomery &  E.  Ry.  Co.  V.  Chambers,  7'J  Ala..  338.  But  this  statement  is 
with  the  qualiUcalion  of  several  late  decisions  which  hold,  that  the 
Injured  person's  contributory  negligence  may  be  overcome  by  the  wanton, 
reckless  and  intentional  negligence  of  the  drfmdant. —  Louisville  &  N. 
R,  Co.  V.  Hurt,  101  Ala.  34;  13  So.  Rep.  130;  Carrington  v.  Louisville 
&  N.  R.  Co.,  88  Ala.  472;  G  So.  Rep.  910;  Brown  v.  Scarboro,  Ala. 
289. 

Arvsona. —  Denied. —  Prescott  &  A.  C.  Ry.  Co.  r.  Ress  (Ariz.),  28  Pac. 
Rep.  1134. 

Arkunsas. —  Denied. —  St.  Louis,  I.  M.,  etc.,  Hy.  Co.  v.  Letlbetter,  45 
Ark.  24G;  Same  i\  Uosenberry,  45  Ark.  250. 

California. —  Approved. —  Holmes  v.  South  Pac.  Ry.  Co.,  97  Cal.  IGl; 
31  Pac.  Rep.  834. 

Connecticut. —  Denied. —  Rowen  v.  New  York,  etc.,  R.  Co.,  59  Conn. 
364;  21  Atl.  Rep.  1073. 

fVonda.— Approved. —  Florida  Southern  Ry.  Co.  r.  Hirst,  30  Fla.  1 ;  11 
So.  Rep.  50G. 

Georgia. —  The  doctrine  is  said  to  ol)tain  in  Georgia  (^Vharton  onXeg., 
§334),  and  this  might  probably  be  inferred  from  the  language  of  the  court 
in  Macon,  etc.,  R.  Co.  v.  Davis,  27  Ga.  113;  Rome  v.  Dodd,  58  Ga.  238, 
and  Augusta,  etc.,  R.  Co.  v.  McElmurry,  24  Ga.  75;  but  there  are  cases 
which  hold  that  the  slight  negligence  of  the  plaintiff,  while  not  a  defense, 
when  the  n<gligeuce  of  tlie  defendant  is  gross,  may  go  In  mitigation  of 
damages.—  Flanders  v.  Meath,  27  Ga.  358;  Atlanta,  etc.,  R.  Co.  v.  Ayres, 
3  Ga.  12. 

So  while  the  doctrine  remains  to  some  extent  unsettled  in  this  State 
(2  Thomp.  on  Neg.  11G8;  Beach  on  Cont.  Neg.  9G;  AtlanU,  etc.,  R.  Co., 
t.  Wyky,  65  Ga.  121;   Western  &  A.  R.  Co.  i'.  Bloom  iiigdale,  74  Ga.  604) 


464  CONTRIBUTORY    NEGLIGENCE. 

negligence  [378J  by  being  left  without  remedy  for  his 
injury,  and  this  though  the  defendant  might  with  ordinary 

the  late  case  of  Central  R.  &  B.  Co.  v.  Newman  (94  Ga,  560;  21  S.  E.  Rep. 
219),  practically  establishes  it  as  the  law. 

Illinois. —  According  to  the  Illinois  doctrine,  if  the  negligence  of  the 
plaintiff  is  slight  and  that  of  the  defendant  gross,  or  more  properly,  if 
the  negligence  of  the  plaintiff  is  slight  compared  with  that  of  the  defend- 
ant, the  plaintiff  can  recover. 

In  Galena,  etc.,  R.  Co.  v.  Jacobs  20  111.  478,  where  the  doctrine  was 
first  announced,  the  court  said:  "The  true  doctrine,  therefore,  we  think 
is  that  in  proportion  to  the  negligence  of  the  defendant,  should  be  meas- 
ured the  degree  of  care  required  of  the  plaintiff,  that  is  to  say,  the  more 
gross  the  negligence  manifested  by  the  defendant  the  less  degree  of  care 
will  be  required  of  plaintiff  to  enable  him  to  recover.  *  *  *  We  say 
then  that  in  these  or  in  like  cases,  the  degrees  of  negligence  must  be 
measured  and  considered,  and  whenever  it  shall  appear  that  the  plaintiff's 
negligence  is  comparatively  slight  and  that  of  the  defendant  gross,  he 
shall  not  be  deprived  of  his  action."  And  this  rule  has  been  followed 
with  little  variation  by  nearly  all  subsequent  cases.  See  Galena,  etc.,  R. 
Co.  V.  Jacobs,  20  IlU.  478;  Chicago  Ry.  Co.  v.  Dimick,96  111.  42;  Hayward 
V.  Miller,  94  111.  349;  C.  B.  &  Q.  R.  Co.  v.  Johnson,  103  111.  512;  The  Wa- 
bash, etc.,  R.  Co.  V.  Wallace,  110  111.  114 ;  City  of  Chicago  v.  Stearns,  105111. 
557;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Feehan,  149  111.  202;  36  N.  E.  Rep.  1036; 
Toledo,  St.  L.  &  K.  C.  R.  Co.  v.  Cline,  135  111.  41;  25  N.  E.  Rep.  846; 
Louisville,  N.  A.  &  C.  Ry.Co.  v.  Johnson,  44  111.  App.  56;  City  of  Beards- 
town  V.  Smith,  150  111.  169;  37  N.  E.  Rep.  211;  Lake  Shore  &  M.  S.  Ry. 
Co.  V.  O'Conner,  115  111.  254;  Garfield  Mfg.  Co.  v.  McLean,  18  111.  447; 
Christian  v.  Erwin,  125  111.  619;  17  N.  E.  Rep.  707;  Cbicago  &  A.  R.  Co. 
V.  Fietsam,  123  111.  518;  15  N.  E.  Rep.  169;  Willard  v.  Swanson,  18  111. 
381;  18  N.  E.  Rep.  548;  Fisher  v.  Cook,  125  111.  280;  17  N.  E.  Rep.  763; 
Tomle  V.  Hampton,  129  111.  379;  21  N.  E.  Rep.  80O;  Quincy,  H.  Ry.  &C. 
Co.  V.  Gruse,  26  111.  App.  397;  Chicago,  B.  &  Q.  R.  Co.  v.  Warner,  22  III. 
App.  462;  affirmed  123  111.  38;  14  N.  E.  Rep.  206;  City  of  Galesburg  v. 
Benedict,  22  111.  App.  111. 

By  a  review  of  these  cases  it  will  be  observed  that  while  the  successful 
plaintiff  is  always  required  to  exerci.«e  ordinary  care,  his  ordinary  care 
is  not  denied  by  proof  of  slight  negligence.  The  doctrine  seems,  there- 
fore, to  be  firmly  established  in  this  State.  See  Parmeleeu.  Farro,  22  111. 
App.  467;  Chicago  &  N.  W.  Ry.  Co.  v.  Des  Lauriers,  40  111.  App.  664; 
City  of  Champaign  v.  Jones,  32  111.  App.  179;  132  111.  304;  23  N.  E.  Rep. 
1125;  Village  of  Jefferson  v.  Chapman,  127  111.  438;  20  N.  E.  Rep.  33; 
Chicago  &  N.  W.  Ry.  Co.  v.  Dunleavy,  129  111.  132;  22  N.  E.  Rep.  15; 
Lake  Shore  &  M.  S.  Ry.  Co.  v.  Johnson,  135  111.  641;  26  N.  E.  Rep.  510; 
North  Chicago  R.  M.Co.r.  Johnson,  114  111.  57;  29  N.  E.  Rep.  186;  North 
Chicago  St.  Ry.  Co.  v.  Williams,  140  111.  275;  29  N.  E.  Rep.  672;  Louis- 


COMP\RATIVB   NEaLIGENCK.  4G5 

ciirc  h:ivo  prevented  it.  But  this  scemd  to  be  verv  liur^h 
and  unjust  towards  the  plaintiff.     If  tho  plaintiff's  negli- 

vllle,  E.  &  St.  L.  C.  R.  Co.  v.  Dulaney,  43  111.  App.207;  Callett  r.  Younc. 
38  III.  App.  VJ8;  14.1  111.  74;  32  N.  E.  Rep.  447.  But  see  City  of  Lanark 
r.  Dougherty,  153  111.  ir,3;  38  N.  E.  Rep.  892. 

Indhma. — Terre  Haute,  etc.,  R.  Co.  v.  Graham,  95  Ind.  286;  Kcefo  r. 
Chicago  &  N.  W.  Ry.  Co.  (Iowa),  CO  N.  W.  Rep.  503.  But  .see  Ivens  v. 
Cincinnati,  W.,  etc.,  Ry.  Co.,  103  Ind.  27. 

Kansas . —  In  this  State  the  doctrine  is  followed  in  Union  Pacific  R.  Co. 
r.  Rollins,  5  Kan.  1(!7;  Kansas,  etc.,  R.  Co.  v.  Fitzsinimon«,  18  Kan.  34; 
Mason  r.  Missouri,  etc.,  R.  Co.,  27  Kan.  83;  Sawyer  r.  Saner,  10  Kan. 
4r,6;  Wichita  &  W.  R.  Co.  r.  Davis,  37  Kan.  743;  Ifi  Pac.  R<p.  7« ;  an<I 
denied  In  Kansas,  etc.,  R.  Co.  r.  Peavey,  29  Kan.  109;  Chicago,  K.  &  N. 
Ry.  Co.  r.  Brown,  44  Kan.  384;  24  Pac.  Rep.  497;  Howard  v.  Kaunas  City, 
etc.,  R.  Co.,  41  Kan.  403;  21  Pac.  Rep.  207. 

Kentucky. —  In  this  State  the  doctrine  prevails  only  to  the  extent  ol 
holding,  nnder  the  statute  (Gen.  St.  C.  67,  §  3),  that  the  defendant  is 
liable  for  gross  negligence,  the  plaintiff  having  contributed  thereto, 
where  the  injury  results  in  death. —  IllnKjis  Cent.  R.  Co.  v.  Dick,  91  Ky. 
434;  15  S.  W.  Rep.  665;  Jones  v.  Louisville  &  N.  R.  Co.,  82  Ky.  610; 
Louisville  &  N.  R.  Co.  v.  Howard,  82  Ky.  212;  Kentucky  Cent.  Ry.  Co.  r. 
Smith,  93  Ky.  449;  20  S.  W.  Rep.  392;  Same  v.  Thomas,  70  Ky.  160;  42 
Am.  Rf^p.  208.  The  gross  neglect  of  defendant  rau.st  be  alleged  to  have 
been  "  willful."  —  Louisville  &  N.  R.  Co.  v.  Coniff  (Ky.),  27  S.  W. 
Bep.  865. 

Maryland.—  Approved.— Baltimore  &  O.  R.  Co.  r.  Kcan,  65  Md.  394. 
See  Fenneraan  v.  Ilolden,  75  Md.  1  ;  22  Atl.  Rep.  1049. 

il'issachusHts.  —  Denied.  —  Marble  v.  Ross,  124  Mass.  44;  Taylor  r. 
C»rew  Mfg.  Co.,  140  Mass.  150. 

MirhUjnn. —  Approved. —  Schlndler  r.  Milwaukee,  etc.,  Ry.  Co.,  87 
Mich.  400;  49  N.  W.  Rep.  670;  Thompson  v.  Flint,  &  P.  M.  Ry  Co.,  57 
Mich.  300. 

Mississippi. —  Approved. —  Christians.  Illinois  Cent.  R.  Co.,  71  Miss. 
287;   12  So.  Rep.  710. 

3f<«»o«n,— Denied.— Hurt  v.  St.  Louis,  etc.,  Ry.  Co.,  94  Mo.  255;  7 
8.  W.  Rep.  1,  5;  Ilnckshold  v.  St.  Louis,  etc.,  Ry.  Co.,  90  Mo.  648;  Tay- 
lor r.  Missouri  P.  Ry.  Co.,  86  Mo.  457;  Brooks  r.  Hannibal  &  St.  J.  R. 
Co.,  35  Mo.  App.  671;  Thorpe  t7.  Missouri  P.  Ry.  Co.,  89  Mo.  C.V); 
Dowling  V.  Allen,  88  Mo.  293.  But  see  Kelley  v.  Union  Ry.  &  T.  Co.,  18 
Mo.  App.  151;  Bergman  v.  St.  Louis,  etc.,  Ry.  Co.,  88  Mo.  678. 

Nebraska. —  Approved. —  Village  of  Orleans  r.  Perry,  24  Neb.  831;  40 
N.  W.  Rep.  417. 

New  Jersey. —  Denied. —  Pennsylvania  Co.  v.  Rlghter,  42  N.  J.  L.  1»<0; 
Hoboken  L.  &  J.  Co.  v.  Lally,  48  N.  J.  L.  604. 

Nexo   rwri-.— Denied.— A.   L.  &  J.  J.   Reynolds  Co.  v.  Third  Ave.  K. 

::0 


466  CONTRIBUTORY   NEGLIGENCE. 

gence  is  of  so  slight  a  character  that  it  is  in  no  sense  the 
proximate  or  efficient  cause  of  the  injury,  and  the  defend- 

Co.,  28    N.  Y.  S.  Rep.  734;  Solomon  v.  Manhattan  Ry.  Co.,  103  N.  Y. 
437;  56  Am.  Rep.  843.    See  Clark  v.  New  York,  etc.,  R.  Co.,  40  Hun,  605. 

Pennsylvania. —  Denied. —  Potter  v.  Warner,  91  Pa.  St.  3G2;  36  Am. 
Rep.  668;  Railroad  v.  Norton,  24  Pa.  St.  469;  Monongahela  City  r. 
Fischer,  111  Pa.  St.  9;  56  Am.  Rep.  241;  Long  v.  Tp.  of  Milford,  137  Pa. 
St.  122;  20  Atl.  Rep.  426. 

South  Carolina. —  Denied. —  Darwin  v.  Charlotte,  etc.,R.  Co.,  23  S.  C. 
531;   55  Am.  Rep.  32. 

Tennessee. —  Denied. —  East  Tenn.,  V.  &  G.  Ry.  Co.  v.  Aiken,  89  Tenn. 
245;  14  S.  W.  Rep.  1082;  Same  v.  Hull,  88  Tenn.  33;  12  S.  W.  Rep.  419. 
Thus,  in  a  recent  case  it  was  said  by  the  court:  "although  the  injured 
party  may  contribute  to  the  injury  by  his  own  carelessness  or  wrong- 
ful conduct,  yet  if  the  act  or  negligence  of  the  party  inflicting  the 
injury  was  the  proximate  cause  of  the  injury  the  latter  will  be  liable  in 
damages,  the  negligence  or  wrongful  act  of  the  injured  person  being 
taken  into  consideration  by  way  of  mitigation  in  estimating  the  dam- 
ages."—  Louisville,  etc.,  R.  Co.  v.  Fleming,  14  Lea,  128.  See  East  Tenn., 
etc.,  R.  Co.  V.  Fain,  12  Lea,  35;  East  Tenn.,  Va.,  &  G.  R.  Co.  v.  Gurley, 
12  Lea,  55,  66. 

Texas. —  Denied. —  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Thornsberry 
(Texas),  17  S.  W.  Rep.  521;  Houston,  etc.,  R.  Co.  v.  Gorbett,  49  Tex. 
573;  McDonald  v.  International  &  G.  N.  Ry.  Co.,  86  Tex.  1;  22  S.  W. 
Rep.  939;  Turner  v.  Ft.  Worth  &  D.  C.  Ry.  (Tex.  Civ.  App.),  30  S.  W. 
Rep.  253;  Gulf,  C  &  S.  F.  Ry.  Co.  v.  Buford,  2  Tex.  Civ.  App.  115;  21  S. 
W.  Rep.  272;  Boyd  v.  Burkett  (Tex.  Civ.  App.),  27  S.  W.  Rep.  223; 
Gulf,  Colorado,  etc.,  Ry.  Co.  v.  Wallen,  65  Tex.  568;  Texas  &  N.  0.  Ry. 
Co.  V.  Brown,  2  Tex.  Civ.  App.  281 ;  21  S.  W.  Rep.  424.  But  see  Houston 
&T.  C.  R.  Co.  V.  Carson,  66  Tex.  345;  McDonald  v.  International  &  G. 
N.  R.  Co.  (Tex.  Civ.  App.),  21  S.  W.  Rep.  774;  Brown  v.  Sullivan,  71 
Tex.  470;   10  S.  W.  Rep.  288. 

Virginia. — Denied. —  Richmond  &  D.  R.  Co.  u.  Pickleseimer,  85  Va. 
798;  10  S.  E.  Rep.  44. 

West  Virginia.— Denied.—  Overhy  v.  C.  &  O.  Ry.  Co.,  37  W.  Va.  624; 
16  S.  E.  Rep.  813.  See  Carrico  v.  West  Va.  C.  &  P.  Ry.  Co.,  35  W.  Va. 
389;  14  S.  E.  Rep.  12. 

Wisconsin. —  Denied.— Cunningham  v.  Lyness,  22  Wis.  245.  But 
where  the  defendant's  negligence  amounts  to  recklessness  he  is  respon- 
sible to  a  plaintiff  who  failed  to  exercise  ordinary  case. —  Little  v.  Super- 
ior R.  T.  Ry.  Co.,  88  Wis.  402;  60  N.  W.  Rep.  705. 

Federal  Courts. —  Approved. —  Alaska  Treadwell  Gold  Min.  Co.  v. 
Whelan,  64  Fed.  Rep.  402;  The  Max  Morris,  28  Fed.  Rep.  881. 

U.  S.  Supreme  Court. —  Approved. —  Inland  &  S.  C.  Co.  •;;.  Tolson,  139 
U.  S.  5.-^1;    11  Sup.  Ct.  Rep.  653. 


CONTRIBUTOUY  NEOLIOENCE.  4t;7 

:int  cau  avoid  its  effects,  it  Bocms  hard  that  the  plaintifT'» 
iujury  should  remain  unredressed;  if  his  negligence  ia  of 
u  grave  character,  it  would  prohuhly  be  such  that  the 
defendant  could  not  avoid  its  etlects,  and  then  the  [jlaintiff 
would  be  able  to  recover.  Moreover,  it  is  impossible  to 
say  how  much  negligence  should  disentitle  the  plaintiff  to 
recover,  and  to  say  that  any  negligence,  however  trivial, 
should  disentitle  him  would  be  obviously  unjust.  But  the 
rule  as  laid  down  in  the  text  presents  no  such  difficult}', 
for  by  it  the  plaintiff  becomes  disentitled  to  recover  only 
where  the  defendant  could  not  by  ordinary  care  avoid  the 
effect  of  the  plaintiff's  act,  which  gives  a  jiractical  test  in 
each  case  of  the  kind  and  degree  of  negligence  which 
should  disentitle  the  plaintiff  to  recover. 

It  should  seem  that  the  same  doctrine  should  be  held  to 
apply  with  respect  to  the  negligence  of /////vZ  parties.  It 
may  be  difficult  in  the  particular  case  before  the  court  to 
♦letermino  what  is  the  proximate  cause  of  the  damage  ;  but 
it  is  a  difficulty  which  it  is  the  duty  of  the  court  to  solve  as 
well  as  it  cau,  and  if  it  arrives  at  a  wrong  conclusion,  still 
no  injusficc.  is  done;  but,  upon  the  other  hand,  to  adopt 
the  doctrine  that  the  negligence  of  third  parties  is  no  ex- 
cuse, would  be,  in  some  cases,  to  do  manifest  injustice. 
Where  the  sul)staMtial  and  proximate  cause  of  ti»e  injury 
is  the  act  of  a  third  party  (an  act  the  ellects  of  which  the 
[379]  defendant  could  not  avoid),  the  defendant,  it  is 
submitted,  ought  to  be  excused.  It  might  be  that  a  very 
serious  injury  was  almost  entirely  due  to  the  third  J^arty, 
yet  because  such  party  is  baMkru[)t  the  plaintiff  has 
selected  the  defendant,  who  had  very  little  to  do  with  the 
injury,  and  could  not  avoid  doing  it,  and  has  recovered 
heavy  damages  against  him.  It  is  true  that  Mr.  Campl)ell, 
in  his  admirable  sketch  of  the  law  of  negligence,  says  that 
contributory  negligence  of  a  third  party  is  no  defense,  and 
the  same  will  be  found  in  many  text-books  (see  Shearman, 
para.   27;    but    see  Wharton,  para3.   148  —  155;    and  see 


468  CONTRIBUTORY   NEGLIGENCE. 

Addison  on  Torts,  5th  ed.,  by  L.  W.  Cave,  Q.  C,  where 
the  difficulty  is  mentioned)  ;  and  the  cases  usually  cited 
for  that  proposition  are  those  which  will  be  found,  ante, 
pp.  17  — 20,  Chapter  I.,  but,  as  there  stated,  they  appear^ 
on  examination,  not  to  warrant  such  a  conclusion.  Indeed, 
they  would  seem  to  assume  that  the  negligence  of  a  third 
party  would  be  an  excuse  if  his  act  were  the  proximate 
cause  of  the  injury,  which  in  those  cases  was  held  not  to 
be  the  fact.  And,  on  the  other  hand,  the  cases  of  Ayles  v. 
South  Eastern  Kailway  Co.  (e),  and  Daniel  v.  Metropolitan 
Railway  Co.  (/*),  would  seem  to  indicate  that  the  negli- 
gence of  a  third  party  might  afford  an  answer.  It  must 
be  owned,  however,  that  if  the  judgment  in  Hughes  v. 
Macfie,  and  Abbott  v,  Macfie  (^),  cannot  be  otherwise 
explained,  that  case  is  an  authority  for  saying  that  the 
negligence  of  a  third  party  is  no  excuse.  In  that  case, 
Hughes,  an  infant,  had  negligently  pulled  down  the  flap 
of  a  cellar,  negligently  left  almost  upright  by  the  defend- 
ant. Judgment  was  given  on  a  motion  for  a  new  trial, 
and  it  did  not  appear  whether  Abbott  (another  infant), 
who  brought  the  second  action,  was  jointly  engaged  with 
Hughes  in  the  negligence.  It  was  held  that  Hughes 
[380]  could  not  recover  (probably  because  his  act  was 
the  proximate  cause),  and  that  if  Abbott  was  jointly 
engaged  with  him  neither  could  Abbott  recover;  but  that 
if  he  was  not  jointly  engaged  he  could  recover  from  the 
defendant,  as  the  injury  was  the  result  of  the  joint  negli- 
gence of  the  defendant  and  Hughes.  Now  if  from  the 
judgment  in  the  first  action  it  is  to  be  inferred  that  Hughes' 
act  was  the  proximate  cause,  we  have  here  a  judgment 
showing  that  the  defendant  would  be  liable,  notwith- 
standing clear  contributory  negligence  in  a  third  person. 
But  it  may  be  doubted  whether,  in  the  first  case,  the  judg- 

(e)  Ayles  v.  South  Eastern  Ry.  Co.,       L.  R.  5  Eng.  &  Ir.  App.  45;  40  L.  J.  C.  P. 
L..  R.  8  Ex.  146;  37  L.  J.  Ex.  104.  121. 

if)  Daniel  v.  Metropolitan  Ry.  Co.,  {g)  Hughes  v.  Macfle,  2  H.  &  C.  744. 


OONTRIKUTOKY    NEOLIOKNCE.  469 

ment  proceeds  upon  the  ground  thiit  Hughes'  act  was  the 
proximate  cause.  It  seems  to  have  been  rather  on  this 
ground  that  quoad  Hughes,  who  was  a  vohinteer,  the 
defendant  had  not  been  guilty  of  any  negligence  at  all, 
hut  (?t/o(T(Z  innocent  persona  ho  had.  Pollock,  C.  B.,  says 
that  if  Hughes  had  left  the  tiap  alone  it  would  not  have 
fallen,  and  that  if  the  coat  of  some  passer-by  had  caught 
it  such  passer-by  might  recover  (or,  in  other  words,  that 
quoad  some  innocent  party  there  was  negligence  in  the 
defendant),  and  it  would  follow  that  if  Hughes,  the  volun- 
teer, and  the  defendant  quoad  Abbott  (an  innocent  party) 
had  been  jointly  guilty  of  a  tort,  each  would  be  separ- 
ately liable  for  the  whole  of  the  damages  upon  general 
principles  (h). 

Probably  the  difficulty  is  not  of  much  consequence  in 
practice,  because  as  soon  as  it  is  seen  that  the  act  of  a  third 
party  is  the  proximate  cause  of  the  injury  then  the  act  of 
the  defendant  becomes  remote,  and  is  no  longer  negligence, 
unless,  indeed,  where  both  acts  are  equally  proximate,  which 
must  be  very  rare. 

In  Burrows  v.  March  Gas  Co.  (i)  the  judgment  of  the 
Exchequer  Chamber  went  mainly  on  the  ground  that  the 
defendants  had  contracted  to  supply  pro[)er  piping  ami  had 
not  done  so,  and  that  it  was  immaterial  that  some  one  else 
[381]  had  been  negligent;  but  it  was  also  said  that  they 
ought  to  have  taken  care  that  the  apparatus  was  safe  and 
sufficient.  In  the  court  l)elow  (k)  the  judgment  of  Kelly, 
C.  B.,  and  Pigott,  B.,  turned  entirely  on  negligence. 
Kelly,  C.  B.,  said:  "  If  a  man  sustain  an  injury  from  the 
separate  negligence  of  two  persons  employed  on  his  prem- 
ises  to  do  two  separate  things,  he    can,  in    my  opinion, 

(*)  See   post,  Ch.  VIII.,    Damages.—  (i^  Harrows  r.  March  Gas  Co.,  L.  R,  7 

(See  Chicago,  St.  V.  &  K.  C.  I!y.  Co.  r.  Ex. '.»:. 

Chambers,  68  Fed.  Itep.  148;  Kollman  t'.  (X)  Burrows  r.  March  Ga»  Co.,  L.  R.  5 

UaDkato.  35  Minn.  52*2;    Trowbridge  r.  Ex.  67;  [atite,  ProxluiaUs  Cause], 
nanville  Street  Car  Co.  (Va.;,  19  S.  E. 
Rep.  780.    SeeaH<«,  1).  39.] 


470  CONTRIBUTORY  NEGLIGENCE. 

maintain  an  action   against  both  or  either  of  the  wrong- 
doers." 

It  is  well  in  considering  the  doctrine  of  "contributory 
negligence,"  to  remember  that  after  the  plaintiff  has  shown 
[382]  that  the  defendant  has  been  negligent,  that  then 
the  defendant  has  to  show  —  first,  that  the  plaintiff  has  been 
[383]  negligent  in  respect  to  the  matter  complained  of, 
and  might  have  avoided  the  consequence  of  the  defendant's 
negligence  ;  [384]  secondly,  that  the  plaintiff's  negliaence 
has  been  of  such  a  character  that  the  defendant  could  not 
avoid  its  effects  (/). 


(0  The  barden  of  proving  contrlbu-  There  eeenie  to  be  a  great  difference  of 

tory  negligence  is  upon  the  defendant,  opinion  in  the  American  courts  upon 

and  is  not  for  the  plaintiff  in  the  first  this  point.    See  Buesching  v.  St.  Louis 

Instance  to  show  that  he  has  not  been  Gas  Co.,  73  Mo.  219;  39  Amer.  Bep.  503; 

guilty      of     contributory     negligence.  Hart  v.  Hudson,  84  N.  Y.  56. 


Burden  of  Proof. —  That  the  burden  of  proof  is  on  the  defendant  to 
establish  plaintiff's  contributory  negligence  is  the  rule  in:  — 

Alabama. —  Smoot  w.  Wetumpka,  24  Ala.  112;  Mobile,  etc.,  R.  Co.  v. 
Crenshaw,  65  Ala.  569;  Montgomery  Gas-Lig:^t  Co.  v.  Montgomery  & 
E.  Ry.  Co.,  86  Ala.  372;  5  So.  Rep.  735;  O'Brien  v.  Tatum,  84  Ala. 
186;  4  So.  Rep.  158;  Birmingham  Mineral  R.  Co.  v.  Wilmer,  97  Ala, 
165;  11  So.  Rep.  886;  Broraly  w,  Birmingham  M.  R.  Co.  (Ala.),  11  So. 
Rep.  341;  Georgia  Pac.  Ry.  v.  Davis,  92  Ala.  300;  9  So.  Rep.  252; 
North  Birmingham  St.  R,  Co.  v.  Caldervpood,  89  Ala.  247;  7  So.  Rep.  360. 

Arizona. —  Lopez  v.  Central  Ariz.  Min.  Co.,  1  Ariz.  464;  Hobson  v.  New 
Mexico  &  A.  R.  Co.  (Ariz.),  11  Pac.  Rep.  545. 

Arkansas.— Texus  &  St,  L.  Ry.  Co.  v.  Orr,  46  Ark.  182;  Little  Rock  & 
Ft.  S.  Ry.  Co.  V.  Atkins,  Id.  423. 

California. — McQuilken  v.  Central  Pac.  R.  Co.,  50  Cal.  7;  Nehrbas  v. 
Central,  etc.,  R.  Co.,  62  Cal.  320;  McDougall  v.  Central,  etc.,  R.  Co.,  6;'. 
Cal.  431. 

Coiorado.— Sanderson  ».  Frazier,  W.  C.  Rep.,  Feb.  19,  1885;  Denver 
&  R.  G.  R.  Co.  V.  Ryan,  17  Colo.  98;  28  Pac.  Rep.  79;  Platte  &  Denver  C 
•&  M.  Co.  V.  Dowell,  17  Colo.  376;  30  Pac.  Rep.  68. 

Dakota.—  Sanders  u.  Reister,  1  Dak.  151 ;  46  N.  "W.  Rep.  680. 

District  of  Columbia.—  Harmon  v.  Washington  &  G.  R.  Co.,  7  Mackey, 
255;  Tolson  v.  Inland  &  S.  C.  Co.,  6  Id.  39. 

Georgia. —  City  Council  of  Augusta  v.  Hudson,  88  Ga.  599;  15  S.  K- 
Rep.  678;  Thompson  v.  Central,  etc.,  R.  Co.,  54  Ga.  509;  contra,  Campbell 
V.  Atlanta,  etc.,  R.  Co.,  53  Ga.  488. 


CONTKIBUTOKY    NEOUGENCE — lU'KDKN    OK    I'KOOI'.       471 

Now  it  is  obvious  that  the  defondant  may  often  fail  in 
proving  the  first  proposition,  just  as  plaintiff  may  fail  in 

Kansas.—  K&ns&8,  etc.,  K.  Co.  v.  Pointer,  14  Kan.  a?;  Kansa«,  etc., 
H.  Co.  V.  riilllibert,  25  Kan.  683;  St.  Louis  &  Sun  Francisco  Ky.  Co.  o. 
Weaver,  86  Kan.  412;  11  Pac.  Rep.  408. 

AVn(«cA-y.— Paducah,  etc.,  R.  Co.  v.  Hoehl,  12  Bush.  41;  Kentucky, 
etc.,  R.  Co.  V.  Thomas,  79  Ky.  160;  Favre  v.  Louisville  &  N.  R.  Co.,  91 
Ky.  541;  19  S.  W.  Rep.  370. 

Maryland. —  Freeh  v.  Philadelphia,  etc.,  R.  Co.,  39  Md.  574;  County 
Commissioners  v.  Burgess,  Gl  Md.  29;  State  to  use  of  Bacon  o.  Balti- 
more &  Potomac  R.  Co.,  68  Md.  482. 

Minnesota. —  Hocum  v.  Wcitherick,  22  Minn.  152. 

Missottri. —  Hicks  v.  Pacific  R.  Co.,  G5  Mo.  34;  Buosching  r.  St.  Louis 
Gas-Llght  Co.,  73  Mo.  219;  39  Am.  Rep.  603,  riote;  Fulks  ».  St.  Louis  & 
8.  F.  Ry.  Co.,  Ill  Mo.  336;  19  S.  W.  Rep.  818;  Moberly  v.  Kansas  City, 
elc,  Ry.  Co.,  98  Mo.  183;  11  S.  W.  Rep.  5(;9;  Murray  v.  Missouri  Pacific 
Ry.  Co.,  101  Mo.  23G;  13  S.  W.  Rep.  817;  Hudson  v.  Wabasli  W.  Ry.  Co., 
32  Mo.  App.  007;  Mitchell  v.  City  of  Clinton,  99  Mo.  153;  12  S.  W.  Rep. 
793.  Contributory  negligence  is  an  aUirmative  defense  which  must  be 
specially  pleatled  and  proved. —  Donovan  v.  Hannibal  &.  St.  Joe  1{.  Co., 
89  Mo.  147;  1  S.  W.  Rep.  232;  Keitel  v.  St.  Louis  C.  &  W.  Ry.  Co.,  28 
Mo.  App.  G57;  St.  Clair  c.  Missouri  Pac.  Ry.  Co.,  29  Mo.  .\pp.  1*'<;  Crurap- 
l.y  t'.  Hannibal  &  St.  J.  R.  Co.,  Ill  Mo.  152;  19  S.  W.  Rtp.  h20;  Neier 
V.  Missouri  Pacific  Ry.  Co.  (Mo.),  IS.  W.  Rep.  387. 

Montana. —  Nelson  v.  City  of  Helena  (Mont.),  39  Pac.  Rep.  905. 
Nebraska.— City  of  Lincoln  v.  Walker,  18  Neb. 224;  20N.  W.  liep.  113; 
Anderson  r.  Chicago,  B.  &  Q.  R.  Co.,  35  Neb.  95;  52  N.  W.  Rep.  840; 
City  of  Omaha  v.  Ayer,  32  Ntb.  375;  49  N,  W.  Rep.  445. 

yeio  Hampshire. —  Smith  v.  Eastern,  etc.,  R.  Co.,  35  N.  H.  36(5. 
Neic  Jersey. —  New  Jersey  Express  Co.  v.  Nichols,  32  N.  J.  L.  lt'>G;  8.^ 
N.  J.  L.  434. 

lihod''  /.s/awrf.— Cassidy  v.  Angell,  12  R.  I.  447. 

Houth  Carolina. —  Carter  v.  Columbia,  etc.,  R.  Co.,  19  S.  C.  20.  h'ee 
Simms  V.  South  Car.  Ry.  Co.,  26  S.  C.  490;  2  S.  E.  Rep.  4fiC;  27  8.  C. 
2G8;  3  S.  E.  Rep.  301;  Whaley  v.  Bartiett,  42  S.  C.  454;  2G  S.  E.  Rep. 
746. 

South  Dakota.— Hmllh  v.  Chicago,  etc.,  Ry.  Co.,  4  S.  I).  71 :  sr.  N.  W. 
Rep.  717. 

rcxrt.s.— Dallas  Consolidated  Traction  Ry.  Co.  v.  Hurley  (Tex.  Civ. 
App.),  31  S.  W.  Rep.  73;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Shleder  (Tex.),  30 
S.  W.  Rep.  902;  Dallas,  etc.,  R.  Co.t>.  Spicker,  Gl  Tex.  427;  conlrn,  Texas, 
etc.,  R.  Co.  V.  Crowder,  63  Tex.  502.  See  Gulf,  C.  &  S.  F.  Ry.  Co.  r. 
Scott,  7  Tex.  Civ.  App.  G19;   27  S.  W.  Rep.  8_'7. 

VirgOiia. —  oouth-West  Va.  Imp.  Co.  ".  Amlrfw,  hi;  Va.  j;""!;  'j  S.  E. 
Rep.  1015. 


472  CONTRIBUTORY   NEGLIGENCE. 

proving   the    negligence    of    the    defendant,    and    a   great 
number   of   cases  will   be  found  in  the  books  where  the 

Washington. —  Spurrier  v.  Front  St.  Cable  Ey.  Co.,  3  Wash  St.  659;  29 
Pac.  Rep.  349. 

West  Virginia.—  Shefi.  v.  City  of  Huntington,  16  W.  Va.  317;  Fowler 
V.  Baltimore  &  O.  R.  Co.,  18  W.  Va.  679. 

Wisconsin. —  Prideaux  v.  Mineral  Point,  43  "Wis.  513;  Randall  v.  N.  W. 
T.  Co.,  54  Wis,  147;  Hoth  v.  Peters,  55  Wis.  405;  Seymer  u.  Lake,  66 
Wis.  651;  Jung  v.  City  of  Stevens  Point,  74  Wis.  547;  43  N.  W.  Rep.  513. 
Federal  Courts. —  Northern  Pac.  R.  Co.  v.  Lewis,  51  Fed.  Rep.  658;  2 
C.  C.  A.  446;  7  U.  S.  App.  254;  Horn  v.  Baltimore  &  O.  R.  Co.,  54  Fed. 
Eep.  301, 

U.  S.  Supreme  Court.— Rough  v.  Railway  Co.,  100  U.  S,  213;  Inland  & 
Seaboard  Coasting  Co.  v.  Tolson,  139  U.  S.  551;  11  Sup.  Ct.  Rep.  653. 
But  defendant  may  avail  himself  of  the  evidence  of  the  plaintiff. —  Wash- 
ington &  G,  R.  Co,  V.  Tobriner,  147  U.  S,  671;  13  Sup.  Ct.  Rep.  557. 

That  plaintiff  must  show  negligence  on  the  part  of  defendant,  and  that 
he  was  in  the  exercise  of  due  care  himself  is  the  ruie  in : — 

Indiana.— luake  Shore  &  M.  S.  Ry.  Co.  v.  Pinchin,  112  Ind.  592;  13  N. 
E,  Rep.  677;  City  of  Columbus  v.  Strassner,  124  Ind.  482;  25  N.  E.  Rep. 
G5;  Alexandria  M.  &  E.  Co.  ■;;,  Painter,  1  Ind,  App.  587;  28  N.  E,  Rep. 
113;  Cincinnati,  W.  &  M.  Ry,  Co.  v.  Stanley  (Ind,  App.),  27  N.  E.  Rep. 
.316;  Cincinnati,  H.,  etc.,  R.  Co.  v.  Butler,  103  Ind.  31;  Louisville,  N.  A.  & 
C.  Ry.  Co.  V.  Sandford,  117  Ind.  265;  19  N.  E.  Rep.  770;  Kentucky  &  L  B. 
Co.  V.  Hall,  125  Ind.  220;  25  N.  E.  Rep.  219;  Hathaway  v.  Toledo,  etc,  K. 
Co.,  46  Ind.  25,  30;  Louisville,  etc.,  R,  Co.  v.  Head,  80  Ind.  117;  Lyons  v. 
Terre  Haute,  etc.,  R.  Co.,  101  Ind.  419,  In  this  State  the  declaration 
must  aver  the  absence  of  negligence  on  the  part  of  the  plaintiff, —  Rogers 
V.  Overton,  87  Ind.  411;  Pennsylvania  Co.  v.  Gallentine,  77  Ind.  322. 

Iowa. —  Murphy  v.  Chicago,  etc.,  R.  Co.,  45  la.  661;  Slosson  v.  Bur- 
lington, etc.,  R,  Co,,  55  la,  294;  Rabe  v.  Sommerbeck  (Iowa),  63  N.  W. 
Rep.  458.    But  see  Raymond  v.  Burlington,  etc.,  R.  Co.,  65  la.  152. 

Louisiana. —  Moore  v.  City  of  Shreveport,  3  La.  Ann,  645;  Ryan  v. 
Louisville,  etc.,  Ry.  Co.,  44  La.  Ann.  806;  11  So.  Rep.  30;  Deikman  v. 
Morgan's,  etc.,  Co.,  40  La.  Ann.  787;  5  So.  Rep.  76;  Clements  v.  Louis- 
iana E.  L.  Co.,  44  La.  Ann,  692;  11  So,  Rep,  51. 

Maine. —  Gleason  v.  Bremen,  60  Me,  222,  224;  Benson  v.  Titcomb,  72 
Me,  31 ;  State  v.  Maine  Central  R.  Co.,  76  Me,  357;  Mosher  v.  Inhabitants 
of  Smithfleld,  84  Me.  334;  24  Atl.  Rep.  876. 

Massachusetts. —  Hinckley  v.  Cape  Cod  R,  Co,,  120  Mass.  257,  262 ;  Stock 
V.  Wood,  136  Mass.  353.  The  burden  of  proof  is  on  defendant  to  show 
gross  or  willful  negligence  on  the  part  of  plaintiff. —  Copley  v.  New 
Haven,  etc.,  R.  Co.,  136  Mass,  61;  Pub.  St.  C,  112,  §  212,  construed.— 
Merrill  v.  Eastern  R.  Co.,  139  Mass.  252;  29  N.  E.  Rep,  666. 

Michigan. —  Detroit,  etc,  R,  Co,  v.  Van  Steinberg,  17  Mich,  99,  119; 


COXTIUIJUTUKV    NEGLIOENCK  —  BURDEN    OF    I'UOOF.       473 

question    of    "  cootributory  "    nogligenco   does  not  really 
arino,  although  the  term  is  used,  but  the  real  question  is  the 

Telpel  V.  llilsendegen,  44  Mich.  4G1 ;  Mynulng  v.  Detroit,  L.  &,  N.  U.  Co., 
67  Midi.  077;  35  N.  W.  Hep.  811. 

Mississippi. —  Vicliaburg  v.  Uennessy,  64  Miss.  3fll. 

North  Carolina.  —  Do'^iiett  v.  Kiclimond,  etc.,  K.  Co.,  78  N.  C.  305; 
Owens  r.  Kichmond,  etc..  U.  Co.,  88  N.  C.  602.  But  this  rule  sueraa  to 
have  been  reversed  by  Acts  1887,  c.  33. —  Jordan  v.  City  of  ABbeville,  112 
a.  C.  743;  1(J  S.  E.  liep.  7G0. 

Oregon. —  Walsh  v.  Oregon,  etc.,  K.  &  Nav.  Co.,  10  Ore.  250;  Ford  v. 
Umatilla  County,  15  Ore.  :5i;);elG  Pac.  Kep.  33. 

The  decisions  are  both  ways  and  the  rule  apparently  unsettled  In  the 
following  States: — 

Connecticut. —  Fox*.  Glastenbury,  29  Conn.  204;  Park  v.  O'Brien,  23 
Conn.  339;  Beers  v.  Housatouic,  etc.,  R.  Co.,  19  Conn.  500;  Bell  c.  Smith, 
39  Conn.  211 ;   Button  v.  Frink,  51  Conn.  342. 

Illinois. —  The  plaintiff  must  show  due  care. —  Kepperly  r.  Hamsden, 
83  111.  354;  Missouri  Furnace  Co.  v.  Abend,  107  111.  44;  47  Am.  Hep. 
4:'5;  Lauster  v.  Chicago,  etc.,  Ky.  Co.,  43  111.  App.  534;  City  of  At)ingdon 
•p.  McGrew,  42  111.  App.  109.  Contra,  Consolidated  Coal  Co.  v.  Wom- 
batker,  134  111.  57;  24  N.  E.  Rep.  G27;  Chicago  &  K.  I.  K.  Co.  v.  Uines, 
33  111.  App.  271 ;  23  N.  E.  Rep.  1021. 

Xew  York.  —  In  New  York  the  decisions  were  irreconcilable  (2 
Thomp.  1177),  until  within  a  short  time  ago  when  the  rule  by  the  later 
cases  was  announced  that  the  plaintiff  must  show  absence  of  contribu- 
tory negligence  on  his  part. — Tolraanr.  Syracuse,  '.18  N.  Y.  198,  revers- 
ing 31  Hun,  397;  Hale  v.  Smith,  78  N.  Y.  48/.;  Hart  t.  Tiie  Hudson 
River  Bridge  Co.,  84  N.  Y.  56;  McDermott  v.  Third  .Vv.  U.  Co.,  44  Hun, 
107;  Geogliegan  v.  Alias  S.  S.  Co.,  22  N.  Y.  S.  liep.  749;  3  Misc. 
Rep.  224. 

Though  he  is  not  required  to  aver  the  absence  of  negligence.  —  Lee  r. 
Troy  Citizens'  Gas-Light  Co.,  98  N.  Y.  115;  Mele  v.  Delaware  &  H.  C. 
Co.,  14  N.  Y.  S.  Rep.  630. 

OAio.— The  rule  is  laid  down  In  Baltimore,  etc.,  R.  Co.  r.  Whltacre, 
(350bio  St.  627),  that  in  an  action  for  an  Injury  occasioned  by  negligence 
where  the  circumstances  require  of  plaintiff  the  exercise  of  due  care  to 
avoid  the  injury,  and  his  testimony  does  not  disclose  the  want  of  such 
care  on  his  part,  the  burden  is  upon  the  defendant  to  show  suchcoutrlb- 
utory  negligence  as  will  defeat  a  recovery.  See  Cleveland,  etc.,  R.  Co. 
r.  Crawford,  24  Ohio  St.  G;J6. 

And  in  another  case  (Cincinnati  St.  Ry.  Co.  v.  Nolthenius,  40  Ohio  St. 
376),  an  action  for  injury  alleged  to  have  been  caused  by  the  negligence 
of  the  defendant,  It  was  held  not  necessary  to  allege  in  the  petition  that 
the  Injury  was  caused  without  fault  or  negligence  of  the  plaintiff, 
*•  unless  the  other  averments  necessary  to  state  a  cause  of  action  sug- 


474  CONTRIBUTORY  NEGLIGENCE. 

one    firstly    above    stated,   viz.,    Has    the   plaintiff   been 
negligent  at  all  in  respect  of  the  matter  complained  of,  and 

gested  the  inference  that  the  plaintiff  may  have  been  guilty  of  contribu- 
tory negligence." 

Pennsylvania.  —  In  this  State  there  are  decisions  holding  that  the  bur- 
den of  proving  contributory  negligence  is  on  the  defendtint  (Mallory  v. 
Griffey,  85  Pa.  St.  275;  Pennsylvania  Tel.  Co.  v.  Varnan  (Pa.),  15  Atl. 
Kep.  624;  Bradwell  v.  Pittsburg  &  W.  E.  E.  Co.,  139  Pa.  St.  404;  20  Atl. 
Rep.  1046;  27  W.  N.  C.  Rep.  264);  but  the  majority  of  the  latter 
decisions  hold,  that  it  is  the  duty  of  the  plaintiff  to  show  that  he  was 
exercising  proper  care.  —  Philadelphia,  etc.,  R.  Co.  v.  Boyer,  97  Pa.  St. 
91;  Hershberger  v.  Lynch  (Pa.),  11  Atl.  Rep.  642;  Baker  v.  Fehr,  97  Pa. 
St.  70.  "Where  a  passenger  on  a  street  car  was  struck  and  injured  by 
a  passing  load  of  hay,  it  was  held  that  to  make  the  company  liable  the 
passenger  must  prove  not  only  that  he  was  without  fault,  but  that  the 
company  was  negligent.  —  Federal  Street,  etc.,  R.  Co.  v.  Gibson,  96  Pa. 
St.  83. 

Vermont. —  In  this  State  the  cases  are  both  ways.  —  Lester  v.  Pitts- 
ford,  7  Vt.  158;  Trow  v.  Vermont,  etc.,  R.  Co.,  24  Vt.  487;  Hyde  v. 
Jamaica,  27  Vt.  443;  Hill  v.  New  Haven,  37  Vt.  501;  "Walker  v.  West- 
field,  39  Vt.  246. 

The  conclusion  is  reached  from  an  examination  of  the  cases  that  in 
those  States  where  it  is  the  rule  that  the  burden  of  proving  contributory 
negligence  is  on  the  defendant,  whenever  the  plaintiff's  case  raises  an 
inference  of  contributory  negligence  the  burden  is  upon  him. —  New  Jer- 
sey Express  Co.  v.  Nichols,  33  N.  J.  L.  434;  Baltimore,  etc.,  R.  Co.  v. 
Whitacre,  35  Ohio  St.  627;  Winship  v.  Enfield,  42  N.  H.  197;  Beatty  p. 
Gilmore,  16  Pa.  St.  463;  Louisville^  etc.,  R.  Co.  v.  Goetz,  79  Ky.  442; 
Missouri  Furnace  Co.  v.  Abend,  107  111.  44;  Gulf,  C.  &  S.  F.  Ry.  Co.  t. 
Scott,  7  Tex.  Civ.  App.  619;  27  S.  "W.  Rep.  827;  Waterman  v.  Chicago  & 
A.  R.  Co.,  82  Wis.  613;  52  N.  W.  Rep.  247,  1136. 

And  in  those  where  the  rule  is  that  the  burden  of  proof  is  on  the 
plaintiff  to  show  care  it  is  held  that  this  may  be  inferred  from  circom- 
stances.— Nelson  v.  Chicago,  etc.,  R.  Co.,  38  la.  564;  French  v.  Bruns- 
wick, 21  Me.  29;  Mayo  v.  Boston,  etc.,  R.  Co.,  104  Mass.  137;  Clements 
V.  Louisiana  E.  L.  Co.,  44  La.  Ann.  692;   11  So.  Rep.  51. 

And  where  it  appears  from  the  plaintiff's  case  alone  that  he  is  guilty  of 
contributory  negligence  the  court  should  direct  a  non-suit. —  Prideauxr. 
Mineral  Point,  43  Wis.  513;  Baltimore,  etc.,  R.  Co.  v.  Whitacre,  36  Ohio 
St.  627;  Whart.,  §  427;  2  Thomp.  1178;  Phillips  v.  East  Tenn.,  V.  & 
G.  Ry.  Co.,  87  Ga.  272;  13  S.  E.  Rep.  644;  Jenkins  v.  Central  R.  &  B.  Co., 
89  Ga.  750;  15  S.  E.  Rep.  655;  Tucker  v.  Baltimore  &  0.  R.  Co.,  59  Fed. 
Rep.  908;  Foreman  v.  Pennsylvania  R.  Co.,  159  Pa.  St.  541 ;  28  Atl.  Kep- 
358;  Jackson  u.  Crilly,  16  Colo.  103;  26  Pac.  Rep.  331;  Nagle  v.  Cali- 
fornia S.  R.  Co.,  88  Cal.  80;  25  Pac.  Rep.  1106;  Bond  v.  Smith,  113  N.  Y- 


CONTRIBLTOKY    NEULIUENCK.  47'! 

might  hf  have  uvoidoil  the  ciofenduuL'.s  uen;ligonco?  Thiij* 
iu  those  numerous  cases  already  mentioned  (m),  where  the 
defeD(hiiit  has  invited  the  phiintiff  upon  his  premises,  or 
has  in  any  other  way  milled  the  phiintill  into  a  feehng  ol" 
security  (w),  the  question  has  not  really  been  whether  the 
piaintirt"  has  been  guilty  of  ''contributory  negligence"  or 
not,  but  whether  under  the  circumstances  he  has  been 
guilty  of  any  negligence  at  all  in  respect  of  the  injury. 
If  iu  any  of  those  cases  it  should  l)e  found  that  he  had  not 
been  misled,  then  he  would  have  been  guilty  of  some  sort 
of  negligence,  and  the  further  question  would  thereupon 
have  arisen,  viz.,  whether  he  was  guilty  of  •'  contribu- 
tory negligence;  "  in  other  words,  w nether  he  had  done 
a  negligent  act,  which  was  the  i)ro.\imate  cause  of  the 
injury  (o). 

[385]  It  may  seem  that  there  are  some  cases  in  which 
the  second  proi)osition(/;)can  scarcely  be  said  to  be  in  issue. 
Where  the  defendaub  does  an  act  the  consequences  ot 
which  are  beyond  his  control,  as  if  he  leaves  a  cart  in  the 
street,  and  the  horse  runs  away  and  the'  j)l:iintiir  carelessl? 
is  driving  on  the  wrong  side  of  the  way,  it  is  obvious  that 
th<J  defendant  cannot  avoid  tiie  effects  of  the  plaintiff's 
negligence  in  point  of  fact,  but  it  is  his  own   faidt   that    he 


(m)  Atite.  tiff's    ncgllRPnce    by    the    exerclBc    <>r 

(n)  Aa  In  cases  of  invltullon  to  alight  ordmary   cari;,  as   It   would   bcciii   lh«y 

.  rom  a  railway  carriage,  bee  «nfe,Cli.  III.  might.    The  plaintiff,  the  owner  ot  Iho 

-.  8,  Carriers.  ferlver  t'lou<l,  waa  biing  tugged  by  the 

(o)  Probably  the  case  of  Smith  f.  St.  defcndanfalug.    The  Silver  Cloud  knew 

Uwrence  Towboat  Co.,  L.  II.  5  P.  C.  Ap.  there  wa»  danger,  but  did  not  Inform  the 

'  •<,  may  be  explained  to  bo  within  the  tug.    This  may  have  led  the  tug  Into  n 

•lUovc   principle,  although    tlio   lni|uiry  feeling  of  s^ecurlly,  and  80  there  wjm  no 

V  IS  there  never  made  whether  the  de-  nugllgenco  on  the  part  of  the  lug. 
.  Tidants  Could  have  avoided  the  plain-  ip)  Supra,  p  'M. 


378;  21  N.  E,  Rip.  128;  Meredith  t>.  Richmond  &  D.  R.  Co.,  108  N.  C. 
GIG;  l;l  s.  E.  Rep.  137;  Hunter  t?.  Coopertown,  etc.,  R.  Co.,  112  N.  Y. 
371;  11)  N.  E.  Rep.  820;  Hamilton  r.  Delaware,  etc.,  R.  Co.,  60  N.  J.  L. 
2G3;  13  All.  Rep.  29;  May  r.  Central  R.  &  B.  Co.,  80  Ga.  363;  4  8.  E.  Rep. 
330;  Solomon  V.  Manhattan  Ry.  Co.,  103  N.  Y.  4:57;  "J  N.  E.  Rep.  •« 
Sroit  V.  Oregon  Ry.  Co.  &  Nav.  Co.,  14  Ore.  L'l  I. 


476  CONTRIBUTORY  NEGLIGENCE. 

has  disabled  himself  from  doing  so,  and  he  must  be  held 
liable.     If  the  defendant's  negligence  is  of  such  a  character 
that  he  has  deprived  himself  of  his  power  of  avoiding  the 
plaintiff's  negligence,  that  is  equivalent  to  his  being  able 
to   avoid  it  and   negligently  omitting  to  do  so.     A  case, 
which  at  first  sight  might  be  thought  difficult  to  explain, 
might  be  thus  interpreted:  A.,  a  station  master,  without 
looking  at  his   table  of  trains  negligently  orders    an   up- 
train  to  be  turned  on  the  line  C,  and  jumps  into  the  train. 
B,  another  station  master,  at  the  same  moment  looks  at 
his  table  of  trains,  but  negligently  looks  at  them  and  makes 
a   mistake,  and  orders  a  down-train  to  be  turned  on  the 
same  line  C.     A  is  injured  in  the  collision,  and  brings  his 
action  againt  B.     The  negligence  of  both  parties  is  identi- 
cal   in  point  of  time   and  both  in  an   equally  substantial 
manner  have  contributed  ;  but  B,  the  defendant,  has  got 
to    show  that  he  could  not  by  the  exercise    of  care  have 
avoided  the  plaintiff's  (A's)  negligence.     He  cannot  show 
that,  for  the  truth  is  that  his  act  was  of  such  a  character  as  to 
render  the  plaintiff's  negligence  unavoidable.     Suppose  the 
defendant,  sitting  in  his  trap  negligently  tied  his  reins  to  it, 
and  fell  asleep, and  his  horse  started  off;  the  plaintiff  negli- 
gently was  playing  at  pitch  and  toss  in  the  street ;  the  defend- 
ant, having  awoke,  could  by  ordinary  care  avoid  running  over 
[386]     the  plaintiff,  but  he  was  too  idle  to  untie  the  reins. 
The  defendant   is  liable ;   but,  could  it  be  contended  that 
he   would  be  less  liable  if  he  had  deprived  himself  of  the 
power  of  exercising  care  in  the  first  instance  by  letting  the 
reins    lie  upon  the  horse's    back?     Clearly  he    would    be 
liable,   although  as  a  matter  of  fact  he  could  not  avoid  the 
plaintiff's  negligence,  having  put  it  out  of  his  power  to 
do  so. 

The  question  whether  the  defendant  could  have  avoided 
the  consequences  of  the  plaintiff's  negligence  was  not  put 
in  the  old  cases,  although  perhaps  substantially  the  doctrine 
operated  upon  the  minds  of  the  judges.     Thus  in  Butter- 


CONTKIBUTOKY    NEULIOENCE.  4  77 

field  V.  Forrester  (7),  tho  defendant  placed  a  polo  acroBS 
part  of  a  higiiway,  tho  plaintiff  mi^ht  have  seen  it  100 
yards  off,  but  ho  was  riding  so  violently  in  tho  streota 
of  Derby  that  h(3  rode  against  it  and  was  injured.  Tho 
Court  did  not  inquire  whether  the  defendant  could  by 
ordinary  caro  have  avoided  the  plaintiff's  negligence, 
l)ut  it  is  quite  prol)able  that  ho  could  not  even  if  he  had  been 
there.  A  man  riding  as  hard  as  ho  could  in  a  pulilio 
street  and  not  able  to  stop  in  100  yards,  would  probably 
have  come  to  harm  if  defendant  had  done  all  that  a 
man  could  do  to  warn  him.  So  also,  as  was  observed 
in  D.  W.  &  W.  Ry.  Co.  v.  Slattery  (r),  if  a  man  in  broad 
daylight  with  nothing  to  obstruct  his  view  chose  to  cross 
a  line  in  front  of  an  advancing  train,  it  would  be  his  own 
folly,  and  the  judge  might  nonsuit.  No  doubt  that  is  so, 
for  his  negligence  would  be  of  such  a  character  that  tho 
defendant  could  not  avoid  it,  for  instance  no  whistling 
would  be  of  any  avail;  but  where,  as  in  that  case,  it  was 
at  night,  and  the  plaintiff  was  in  a  hurry  to  obtain  u 
ticket,  a  whistle  might  have  stopped  him.  It  was  a 
fjuestion  for  the  jury  which  was  the  causa  catisans,  tho 
absence  of  whistlinfj  or  the  ne";ligence  of  the  plaintiff  in 
not  icioking  out.  In  a  later  case  the  plaintiff  admitted 
[387]  that  he  could  have  seen  the  advancing  train  if  he 
had  looked.  There  was  no  whistle.  There  was  a  man  at 
the  gates,  but  it  was  not  his  duty  to  give  warning,  and  in 
fact  ho  gave  none.  It  was  hold  by  the  Court  of  Appeal 
(Baggallay,  L.  J.,  diss.),  that  the  plaintiff  was  rightly 
nonsuited.  The  Master  of  tho  Kolls  and  Lord  Justice 
Bowen  thought  that  there  mij^ht  be  some  evidence  of 
negligence  in  the  defendants  in  not  whistling;  but  that 
the  plaintiff's  evidence  showed  that  he  was  olearly  guilty 
of  contHbulory  negligence,  it  being  understood  that    tho 


iq)  Butterfleld  r.  Forrester,  11  East,  (r)  I).  W.  A  Uy.  Co.   r.   SUltery,   L. 

60.  U.  3  .\i)|).  Cas.  IIW. 


478  CONTRIBUTORY  NEGLIGENCE. 

defendants  could  not  by  reasonable  care  have  avoided  the 
plaintiff's  negligence  (5). 

It  cannot  be  considered  to  be  contributory  negligence  if 
the  plaintiff  has  merely  not  anticipated  the  defendant's 
negligence  (<),  for  the  plaintiff  has  a  right  to  presume  that 
the  defendant  is  going  to  act  with  ordinary  care  until  he 
has  some  notice  to  the  contrary,  when  it  becomes  his  duty 
(as  we  have  seen)  to  take  ordinary  means  to  avoid  it,  that 
is,  such  means  as  a  prudent  man  ought  to  take.  And  by 
the  same  rule  the  defendant  cannot  presume  the  plaintiff's 
negligence,  and  provide  against  it  beforehand,  but  when 
he  is  aware  of  it  he  is  bound  to  use  care  to  avoid  it. 

The  defendant  is  not  excused  merely  because  the  plain- 
tiff, knowing  of  a  danger  caused  by  the  defendant,  volun- 

(g)  Davey  V.  L.  &S.  W.  Ry.  Co.,llQ.  B.161;  42  L.  J.  Q.  B.  105  (passenger  re- 

B,  D.  213;  ana  In  C.  A.  12  Q.  B.  D.  70.  lying  on  defendants  having  fastened  the 

it)  Vennal  v.  Garner,  1  Or.  &.  M.  21  door).    See  post.  Presumption  of   Care 

(ship  relying  on  another  taking  a  certain  and  Negligence,  Ch.  VI;  [infra]. 
coarse).    Gee  v.  Met.  Ry.  Co.,  L.  R.  8  Q. 

(t)  Robinson??.  Western  Pac.  R.  Co.,  48  Cal.  409;  Shea  v.  Potrero,  etc., 
R.  Co.,  44  Cal.  414;  Fraler  v.  Sears  Water  Co.,  12  Cal.  555;  Damour  w. 
Lyons,  44  la.  276;  Moulton  v.  Aldrich,  28  Kan.  306;  Cleveland,  etc., 
R.  Co.  V.  Terry,  8  Ohio  St.  570;  FLsk  Iw.  Wait,  104  Mass.  71;  Fox  v. 
Sacliett,  10  Allen,  535;  Ernst  v.  Hudson  River  R.  Co.,  35  N.  Y.  9;  Kellogg 
V.  Chicago,  etc.,  R.  Co.,  26  Wis.  223;  Reeves  v.  Delaware,  etc.,  R.  Co., 
30  Pa.  St.  454;  Brown  v.  Lynn,  31  Pa.  St.  510;  Langan  v.  St.  Louis,  etc., 
R.  Co.,  72  Mo.  392;  Central  R.  Co.  v.  Harrison,  73  Ga.  744;  Chicago  & 
N.  W.  Ry.  Co.  V.  Goebel,  119  111.  515;  Nichols  v.  Chicago,  etc.,  R.  Co., 
G9  Ia.Sl54;  Clements  v.  Louisiana  E.  L.  Co.,  44  La.  Ann.  692;  11  So.  Rep. 
61;  Hedges  u.  Kansas,  18  Mo.  App.  62;  Apple  w.  Board  Comrs.  Marion 
County,  127  Ind.  553;  27  N.  E.  Rep.  166;  Hobson  v.  New  Mexico  &  A.  R. 
Co.  (Ariz.),  11  Pac.  Rep.  545;  Sanderson  v.  Frazier,  8  Colo.  79;  54  Am. 
Rep.  544;  Conner  v.  Citizen's  St.  Ry.  Co.,  105  Ind.  62;  55  Am.  Rep.  177; 
Jennings  v.  Van  Schalck,  108  N.  Y.  530;  15  N.  E.  Rep.  424;  Undhejem  v. 
Hastings,  38  Minn.  485;  38  N.  W.  Rep.  488;  Krey  v.  Schlussner,  62  Hun, 
020;  16  N.  Y.  S.  Rep.  695. 

The  defendant  is  not  bound  to  anticipate  the  negligence  of  the  plain- 
tiff.— Carrington  v.  Louisville  &  N.  R.  Co.,  88  Ala.  472;  6  So.  Rep.  910; 
The  Sir  Garnet  Wolseley,  41  Fed.  Rep.  896;  Evans  v.  Adams  Exp.  Co., 
122  Ind.  362;  23  N.  E.  Rep.  1039;  Johnson  v.  Willcox  (Pa.),  19  Atl.  Bep. 
1)39. 


CONTUIBUTORY  NEGLIGENCE.  479 

tarily  incurs  that  danger;  for  the  defendant  may  have  so 
[338]  acted  as  to  induce  the  phiintiff  as  a  reasonable  man 
lo  incur  the  danger  (u).  The  circumstances  are  for  the 
jury.  If  the  phiintiff  negligently  incurs  such  (hmger,  that 
is  to  say,  not  acting  as  a  reasonable  man  would  do,  ho  can- 
not recover  (?).  If  he  intentionally  incurs  the  danirer  he 
is  not  negligent,  it  is  true,  but  he  cannot  complain  of  the 
result,  and  so  here  again  he  cannot  recover  (x).     It  is  no 

(«i)  Dewlrc   !•.  Bailey,  17  T-athrop,  S.  Lewis,  126  Ind.   80;  25    \.    K.  Hep.  593; 

C.  K.  (131J  Mass.  169  (man  having  to  go  Gordon  v.   CuminlngH,  152  Mass.  613;  25 

on  slippery  sidewalk) ;  lyooney  v.    Mc-  N.  E.  Kep.  97.S;  McGoldrlck  r.  New  York, 

Lean,  15  Ijithrop,  S.  C.  K.  Mass.    [129J  etc..  U  Co.,  66  Hun,  G29;  20  .V.  Y.  8.  Itep. 

n  (tenant  of  Hat  nslng  dangeroas  etalr-  914;    Merrill  v.  North  Yurniouib,  78  Me. 

case);  [Smith    r.    Team.  (Miss.),  16  So.  200;  57  Am.  Rep.  794.1 
lt«p.  49-2,  (woman  necessarily  entering  a  (r)  Clayards  r.  Dcthlck,  12  Q.  B.  439 

carriage,  though  she  knew  It  to  be  dan-  (cabman    leading   horse    past    heap    of 

Rcrous  to  do  80) ;  Shannon  v.   Boston  &  soil);  Humphries  v.   Armstrong  Co.,  M 

A,  U.  Co.,  78  Mo.  52   (woman  Injured  by  I^a.  St.  204  (plaintiff  crossing  an  unsafe 

jumping  from  a  suddenly  started  car  in  bridge);  Jones  r.  Uoyco,/)o<<,  Adams  v. 

which  she  was  Bitting  by  permission  of  L.  &  Y.  Ry.  Co.,  tintf. 
ibo  station  agent).    See  Spearbracker  i-.  (■>')  Sec  remarks  of  Ix)rd  Braniwell  in 

Larrabcc,  61  Wis.  573;    Ross    i:  Uaven-  Appendix  U.  [omitted  In  this  edition], 
port,  UC  la.   B48;  Town  of  Posey ville  f. 

(r)  Rowell  u.  Stamford  St.  K.  Co.,  64  Conn.  37'!;  30  Atl.  Kip.  131; 
Illinois  Cent.  K.  Co.  r.  Davidson,  G4  Fed.  Rep.  301 ;  Godtlard  v.  Mcintosh, 
161  Mass.  253;  37  N.  E.  Kep.  1(J9;  Aurora  Cotton  Mills  v.  0;,'bert,  44  111. 
.\pp.  034;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Montgomery,  85  Tex.  t;4 ;  19  S.  W. 
Rep.  1015;  Moore  v.  Edison  E.  I.  Co.,  43  La.  Ann.  792;  9  So.  Rep.  433; 
.Moore  v.  Norfollv  &  W.  U.  Co.,  87  Va.  489;  12  S.  E.  Rep.  908;  Coops  p. 
Uke  Shore  &  M.  S.  Ry,  Co.,  GO  Mich.  448;  33  N.  W.  Rep.  541 ;  Woodman 
n.  Pitman,  79  Me.  450;  10  Atl.  Rep.  321;  Montgomery  &  E.  Ry.  Co.  v. 
Thompson,  77  Ala.  448;  54  Am.  Rep.  72;  Higgins  v.  Cherokee  R.  Co.,  73 
Ga.  149;  East  Tenn.,  Va.,  etc.,  R.  Co.  v.  Rush,  15  Lea  (Tenu.),  145; 
Mantel  o.  Chicago,  etc.,  Ry.  Co.,  33  Minn.  02;  Walker  v.  Rcidsvllle,  90  N. 
C.  382;  Ilartraan  v.  Muscatine,  70 la.  430;  McGinty  v.  Keokuk,  fiO  la.  725; 
I'rewitt  V.  Eddy,  115  Mo.  283;  21  S.  W.  Rep.  742;  Eckerd  v.  Chicago  &N. 
W,  Ry.  Co.,  70  la.  353;  Louisville  &  N.  R.  Co.  r.  Schmetzer,  94  Ky.  424; 
22  S.  W.  Rep.  003;  Harris  r.  Hannibal  &  St.  Joe  R.  Co.,  .■>9  .Mo.  233;  Cook 
r.  Wilmington  City  E.  Co.,  9  Houst.  300;  32  Atl.  Rep.  C43;  Sheeler  v. 
Chesapeake  &  O.  R.  Co.,  81  Va.  188;  Chicago  &  E.  I.  R.  Co.  r.  Roberta, 
44  III.  App.  179;  Lehigh  Valley  R.  Co.  i'.  Greiner,  1 13  Pa.  St.  600;  Downey 
r.  Chesapeake  &0.  R.  Co.,  28  W.  Va.  732;  Cornwall  r.  Charlotte,  etc., 
R.  Co.,97  N.  C.  11. 

{X)  Schoenfeld  r.  Milwaukee  City  Ry.  Co..  74  Wis.  433:  43  N.  W.  Rep. 
162;Twogood  V.  New  York,    12   Daly,   220;    Memphis   &  L.   R.    Co.  r. 


480  CONTRIBUTORY  NEGLIGENCE. 

excuse  for  the  defendant  to  say  that  the  plaintiff  is  doinsr 
something  illegal  {y)  unless  he  can  add  that  the  doing  so 
contributed  materially  to  the  accident. 

(y)  Either  In  case  of  breaking  an  Act  38],  405;  or  In  ease  ol  breaking  the  com- 

of  Parliament,  see  Steele  v.  Buchart,  104  mon  iaw,  as  by  trespassing,  see  the  cases 

Mass.    59;  Sutton    v.    Wanwantosa,   29  of  falling  into  an  excavation  on  defend- 

Wis.  21;  but  see  Feitalv.  Middlesex  Ry.  ant's  land,  ante,  Ch.  II.  s.  2;  [see  infra}. 
Co.,  109  Mass.  398;  see  Wharton,  ss.  331, 

Salinger,  46  Ark.  528;  Barstow  v.  Old  Colony  K.  Co.,  143  Mass.  535; 
Bardwell  v.  Mobile  &  O.  R.  Co.,  63  Miss.  574;  City  of  Horton  v.  Trom- 
peter,  53  Kan.  160;  35  Pac.  Rep.  1106;  Clements  v.  Louisiana  E.  L.  Co., 
44  La.  Ann.  692;  11  So.  Rep.  61;  Piatt  v.  Chicago,  etc.,  Ry.  Co.,  84  la. 
694;  51  N.  W.  Rep.  254;  Miner  v.  Connecticut  River  R.  Co.,  153  Mass. 
398;  26  N.  B.  Rep.  994;  Hinz  v.  Starin,  46  Hun,  626 ;  Citizen's  St.  Ry.  Co. 
V.  Twiname,  111  Ind.  587;  13  N.E.  Rep.  55;  Jochemr.  Robinson,  72  Wis. 
199;  39  N.  W.  Rep.  383;  Frazer  v.  South  &  N.  A.  R.  Co.,  81  Ala.  185;  1 
So.  Rep.  85;  Barlow  v.  McDonald,  39  Hun,  407;  Allis  v.  Columbia  Uni- 
versity, 19  D.  C.  270;  Dwyerv.  New  York,  etc.,  Ry.  Co.,  47  N.  J.  L.  9; 
Boylan  v.  Brown,  63  Hun,  627;  17  N.  Y.  S.  Rep.  648;  Chicago  &  A.  R.  Co. 
V.  Murphy,  17  111.  App.  444;  and  many  of  the  cases  cited  in  the  last  pre- 
ceding note. 

Illegal  Act. —  It  is  no  defense  that  plaintiff  was  doing  an  illegal  act  at 
the  time  of  the  injury  unless  the  act  was  the  proximate  cause  of  the 
injury. 

As  where  one  was  injured  by  the  negligence  of  another  while  riding 
on  the  wrong  side  of  the  road  in  violation  of  law  (Spofford  v.  Harlow, 
3  Allen,  176),  or  while  attempting  to  pass  another  carriage  on  the  road 
(Damon  v.  Scituate,  119  Mass.  66),  or  by  placing  a  wagon  transversely  to 
the  course  of  a  street  while  loading  it,  in  violation  of  an  ordinance 
(Steele  u.  Burkhardt,  104  Mass.  59),  or  driving  at  a  speed  forbidden  by 
ordinance  (Hall  v.  Ripley,  119  Mass.  135),  or  getting  off  the  front  plat- 
form of  a  street  car,  contrary  to  lav?  (Nissen  u.  Missouri  R.  Co.,  19  Mo. 
App.  662),  and  in  an  action  against  a  railroad  company  for  injuries,  it  is 
no  defense  that  the  plaintiff  was  at  the  time  violating  the  rales  of  the 
company. —  Ford  v.  Fitchburg  R.  Co.,  110  Mass.  240. 

Nor  is  it  a  defense  that  one  who  receives  an  injury  by  the  negligence  of 
another  is  riding  on  Sunday  in  violation  of  a  statute. —  Platz  ».  City  of 
Cohoes,  89  N.  Y.  219;  42  Am.  Rep.  286;  Stewart  v.  Davis,  31  Ark.  518; 
25  Am.  Rep.  576;  Piollet  v.  Simmers,  106  Pa.  St.  96;  24  Am.  Law  Reg. 
235;  Suton  v.  Wauwatosa,  29  Wis.  21;  9  Am.  Rep.  634;  Alexander  r. 
Oshkosh,  33  Wis.  277;  Knowlton  v.  Milwaukee  City  R.  Co.,  59  Wis.  278; 
Opahl  V.  Judd,  30  Minn.  126;  Sewall  v.  Webster,  69  N.  H.  696;  Went- 
worth  V.  Jefferson,  60  N.  H.'158;  Baldwin  v.  Barney,  12  R.  I.  392;  Car- 
roll V.  Staten   Island  R.  Co.,  68  N.  Y.  126;  Philadelphia,  etc.,  R.  Co.  v. 


CONTRIBUTORY    NEGLIGENCE  —  ILLEGAL    ACT.  481 

[389]  The  cases  of  Cliiyanls  v.  IMhick  (z)  and  of 
Wyatt  V.  G.  W.  Ry.  Co.  (a  )  have  been  ox)mmonted  on  in  the 

;)   Supra.  («)  Poit. 

Philadelphia,  etc.,  Steamboat  Co.,  23  How.  209;  Black  «.  City  of  Lewiston, 
2  Idaho, 254;  13  Pac.  Rep.  80. 

Or  laboring  on  Sunday. —  Sawyer  v.  Oakman,  7  Blatchf.  290;  Scbmid 
V.  Humphrey,  48  la.  052;  30  Am.  lU'p.  414;  Louisville,  N.  A.  &C.  Hy. 
Co.  r.  Buck,  110  Iiid.  500;  19  N.  E.  Kep.  453;  Johnson  r.  Missouri  Pac. 
Ry.  Co.,  18  Neb.  690;  Loalsville,  N.  A.  &  C.  Ry.  Co.  r.  Frawley,  110  Ind. 
18;  9  N.  E.  Rep.  694. 

And  where  one  let  a  horse  on  that  day  to  go  to  a  certain  place  and  the 
baiU-e  went  to  another,  and  the  horse  was  injured  by  the  distance  and  the 
Immoderate  driving,  it  was  held  the  bailee  might  recover  (.Martin  r. 
Gloster,  40  Me.  520),  not  if  the  injury  was  received  while  going  upon  the 
exact  journey. —  Parker  v.  Lutner,  GO  Me.  528;  Frojit  r.  Plumb,  40  Conn. 
Ill ;  Fisher  v.  Kyle,  27  Mich.  454. 

But  in  Massachusetts  and  some  of  the  other  New  England  States,  a 
different  doctrine  prevails. —  Bosworlh  v.  Swansey,  10  Met.  303;  Lyons 
r.  Desotelle,  124  Mass.  387;  Jones  r.  Andover,  10  Allen,  18;  Hinckley  v. 
Penobscot,  42  Me.  89;  Bryant  v.  Biddeford,  39  Me.  193;  Johnson  v.  Iras- 
burgh,  47  Vt.  28. 

It  Is  there  held  that  one  receiving  an  injury  while  traveling  on  Sunday 
except  for  the  purpose  of  necessity  or  charily  can  not  recover. —  Hol- 
conibr.  Danby,  51  Vt.  428;  Bucher  V.Cheshire  R.  Co.,  8  Sup.  Ct.  Rep. 
974;  and  cases  cited  supra. 

But  when  the  injury  is  wantonly  or  willfully  inflicted,  even  In  Maasa- 
chusetts,  the  fact  that  one  is  traveling  on  that  day  is  no  defensi-. — 
Wallace  i'.  Merrimack  Riv.  Nav.,  etc.,  Co.,  134  Mass.  95;  45  Am.  Rep.  301. 

(In  Barker  v.  Worcester,  S.  J.  C.  Mas.s.,  2  (Boston)  Daily  Record,  No. 
46,  making  a  social  call  was  held  not  to  be  within  the  meaning  of  the 
statute,  citing  Hamilton  v.  Boston,  14  Allen,  475.) 

In  Massachusetts  one  who  walks  a  short  distance  for  exercise  on 
Sunday,  does  so  at  his  own  peril. —  Barker  v.  City  of  Worcester,  139 
Mass.  74;  29  N.  E.  Rep.  474. 

And  where  one  while  traveling  on  Sunday  was  bitten  by  the  defendant's 
vlcions  dog,  it  was  held  in  that  State  that  he  could  recover  for  injarlcs 
80  received.—  White  v.  Lang,  128  Mass.  698;  35  Am.  Rep.  402. 

And  in  Maine  where  one  walked  for  exercise  on  that  day,  though  he 
turned  aside  from  his  regular  course  to  get  a  friend  to  accompany  him 
(O'Connell  v.  Lewiston,  65  Me.  34),  or  to  drink  a  gla.ss  of  beer.  It  wa.s 
held  he  could  recover  for  Injuries  received. —  Davidson  r.  Portland,  69 
Me.  110;  31  Am.  Rep.  253),  unless  the  effects  of  the  beer  contributed  to 
the  Injury. 

Generally,  however,  the  rule  is  as  stated  that  a  violation  of  the  law 

31 


482  CONTRIBUTORY  NEGLIGENCE. 

recent  case  [390]  of  Lax  v.  Darlington  (Mayor  of),  by 
Bramwell,  L.  J.  (6),  who  objected  to  the  phrase,  **  What 
would  a  prudent  man  do?"  saying  that  a  prudent  man 
might  lead  a  forlorn  hope,  or  might  jump  out  of  a  fast 
train  if  he  saw  imminent  danger  to  his  wife  or  child;  and 
in  this  sense  the  phrase  does  not  seem  to  be  a  bad  one  (c). 
The  defendant  cannot  be  expected  to  provide  against,  or  to 
be  answerable  for,  the  effects  of  unusual  and  extraordinary 
motives  which  may  tempt  a  man  to  incur  danger.  But  the 
phrase  must  be  taken  to  mean,  "  What  would  a  prudent  man 
do  under  ordinary  circumstances?  "  Suppose  an  average 
prudent  man  (so  to  say)  would  endeavor  to  get  out  of  a 
train  just  moving  from  Peterborough  platform  if  he  wanted 

(6)  Laxv.  Darlington  (Mayor  of),L.  (c)  See  remarks  of  Lord  Bramwell  In 

R.  6  Ex.  D.  28;  49  L.  J.  Ex.  105,  C.  A.  Appendix  B. 

must  be  the  proximate  cause  of  the  injury  to  entitle  one  to  recover.  — 
Neanow  w.  Ullech,  46  "Wis.  581;  Griggs  v.  Fleckiastein,  14  Minn.  81; 
Spofford  V.  Harlow,  3  Allen,  176;  Street  v.  Laumier,  34  Mo.  469;  Steele 
V.  Burkhardt,  104  Mass.  59;  Klipper  v.  Coffey,  46  Md.  117;  Davidson  zj. 
Portland,  69  Me.  116;  Morton  v.  Gloster,  46  Me.  520;  Hall  v.  Ripley, 
119  Mass.  135;  Minerley  v.  Union  Ferry  Co.,  66  Hun,  113;  9 
N.  Y.  S.,  Rep.  104;  Prev?itt  v.  Eddy,  115  Mo.  283;  21  S. 
W.  Rep.  742;  Van  Anken  v.  Chicago,  etc.,  E.  Co.,  96  Mich.  307;  55  N. 
W.  Rep.  971;  Illinois  Cent.  R.  Co.  v.  Dick,  91  Ky.  434;  15  S.  W,  Rep. 
665;  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Frawley,  110  Ind,  18;  9  N  .E.  Rep. 
594. 

Where  the  illegal  act  directly  produces  the  injury,  as  where  one  was 
injured  by  driving  across  a  bridge  faster  than  a  walk  in  violation  of  an 
ordinance.  —  Heland  v.  Lowell,  3  Allen,  407. 

And  where  one  without  authority  of  law  connected  his  drain  with  a 
public  sewer,  and  water  from  the  sewer  backed  up  and  flooded  his 
cellar  (Darling  v.  Bangor,  68  Me.  108"),  it  was  held  he  could  not  recover. 

And  where  one  while  traveling  upon  a  non -transferable  free  pass  by 
representing  himself  to  be  the  owner,  was  injured,  it  was  held  he  could 
not  recover  for  injuries  received  unless  the  negligence  of  the  company 
was  so  gross  as  to  amount  to  willfulness  (Toledo,  etc.,  R.  Co.  v.  Beggs, 
85  111.  80J,  and  where  one  was  killed  while  stealing  a  ride  on  defendant's 
train,  it  was  held  his  representatives  could  not  recover  damages  therefor.— 
Toledo,  etc.,  R.  Co.  v.  Brooks,  81  111.  245;  see  Wallace  v.  Cannon,  38 
Ga.  199.  The  soundness  of  these  decisions  is  questioned.  —  Beach  on 
Contributory  Neg.,  2d  ed.,  §  48. 


CONTRIBUTOKY    NEULIGENCK  —  1)1  i:    r.viil  483 

to  go  to  Newark  nitlicr  tli:in  ht;  curried  on  to  Retford;  if 
80,  there  would  be  iio  contributory  negligence.  But  sup- 
pose an  average  prudent  man  would  not  endeavor  to  gut 
out  if  the  train  had  been  under  way  two  nnnules,  there- 
fore if  any  one  did  yo  he  would  be  guilty  of  contributory 
negligence;  yet  he  might  be  a  very  prudent  man  in  f net  if 
£100,000  depended  upon  his  stojiping  at  Peterborough  ; 
but  I  do  not  think  the  defendant  ought  to  be  answerable  for 

Due  Care. —  In  law  a  prudent  man  is  one  who  exercises  due  care.  It 
Is  axiomatic  that  if  such  a  person  is  injured  by  the  neKli<;euctt  of  another 
he  may  recover  therefor. —  Altoona  v.  Lotz,  114  Pa.  St.  23H;  IIannibtil& 
St.  Joe  R.  Co.  u.  Martin,  111111.21!);  Bergr.  City  of  Milwaukee,  83  Wis. 
r>9;t;  53  N.  W.  Rep.  S'.'O;  Chicago,  St.  L.  &  P.  R.  Co.  v.  S|)llker,  13t  Ind. 
3.S0;  33  X.  K.  Rep.  280;  Crowley  v.  Si.  Louis,  etc.,  Ry.  Co.,  24  Mo.  App. 
U'J;  Lapointe  ».  Middlesex  R.Co.,  144  Mass.  18;  Coleman  v.  Second  Av. 
U.  Co.,  41  Ilun,  380;   Baltimore  &  Y.  T.  Road  v.  Lconhardt,  CG  Md.  70. 

The  rule  that  he  cannot  recover  if  guilty  of  contributory  negligence  is 
I'qually  well  e.stabli.'-hrd. —  St.  Louis  &  S.  F.  Ry.  Co.  v.  TrawecU,  84  Tex. 
C5;  19  S.  W.  Rep.  370;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Shieder  (Texas),  30  S. 
W.  Rep.  902;  Salem  Bedford  Stone  Co.  o.  O'Brien  (Ind.  App.),  40  N.  E. 
Uep.  430;  Bradwell  v.  Pittsburgh  &  W.  E.  P.  Ry.  Co.,  153  Pa.  St.  105;  25 
-Ul.  Rt-p.  C23;  Central  R.  &  B.  Co.  v.  Attaway,  90  Ga.  05tJ;  IG  S.  E.  Rep. 
•JJC;  Flaug  r.  Chicago,  etc.,  Ry.  Co.,  9(1  Mich.  30;  55  N.  W.  Rip.  444; 
Suie  V.  Lauer  (N.  J.),  26  Atl.  Rep.  ISO;  Lilley  v.  Fletcher,  81  Ala.  234; 
I  So.  Rep.  273. 

The  text  clearly  states  the  reasons  upon  which  is  based  the  rule  of 
law  permitting  the  acts  of  persons  to  conform  to  the  occasion  and  the 
relation  of  the  parties  or  places,  as  far  as  prudence  is  concerned. —  Hart 
V.  Delaware  L,  &  W.  Ry.  Co.,  67  Hun,  648;  22  N.  Y.  S.  Rep.  3.  Thus  a 
mother  who  was  uijured  by  falling  into  an  open  hatchway  while  trying  to 
prevent  the  falling  therein  of  her  four-year-old  child,  who  had  stumliled, 
was  held  not  guilty  of  contributory  negligence. —  Clark  v.  Famous  S.  &.C. 
Co.,  If,  Mo.  App.  463.  SceDonahoer.  Wabash,  etc.,  Ry.  Co.,  83  Mo.  560; 
63  Am.  Rep.  594.  So  where  plaintiff  was  injured  by  falling  into  a  ilitch 
while  running  through  a  public  street,  on  a  dark  night,  to  assist  in  extin- 
guishing a  lire,  he  was  not  guilty  of  contributory  negligence. —  Nobles- 
vllle  G.  &  I.  Co.  V.  Loehr,  124  lud.  79;  24  N.  E.  Rep.  579. 

But  where  a  passenger's  only  reason  for  attempting  to  alight  from  a 
nioviug  railway  train  was  the  failure  of  the  train  to  stop  at  the  station, 
he  cannot  complain  if  injured.— Butler  u.  St.  Paul  &  I).  R.  Co.  (.Muuie- 
sota),  60  N.  W.  Rep.  1090.  See  K.  C,  Ft.  S.  &  M.  Ry.  Co.  p.  Mayes,  58  Ark. 
397;  24  S.  W.  Rep.  1076.  So,  a  recovery  cannot  be  had  for  the  killing  by 
*  train  on  a  railroad  trestle  of  a  person  who  failed  to  exercise  ordinary 


484  CONTRIBUTORY  NEGLIGENCE. 

[391]  such  an  unexpected  motive  (cZ).  It  should  be 
observed  that  in  many  cases,  as  in  Lax  v.  Darlington,  the 
defendant  has  done  a  wrong  which  has  placed  the  plaintiff 
in  a  position  where  he  has  to  choose  between  foregoing  what 
he  has  a  right  to  do  or  running  a  risk  of  injury  and  the 
defendant,  as  a  wrong-doer,  does  not  seem  to  be  in  a  posi- 
tion to  take  advantage  of  his  own  wrong  (e),  but  ought  to 
be  held  liable  for  damages  resulting  from  the  risk  which  he 
has  compelled  the  plaintiff  to  run,  if  it  was  reasonable  for 
the  plaintiff  to  run  such  risk  from  his  point  of  view,  and  if 
the  defendant  ought  to  have  contemplated  that  the  plaintiff 
might  reasonably  run  such  risk. 

A  choice  of  evils  may  often  be  all  that  is  left  to  a  man, 
and  he  is  not  to  blame  if  he  chooses  one ;  nor  even  if  he 
choose  the  greater,  if  he  is  in  circumstances  of  difficulty 
and  danger  at  the  time,  and  has  been  compelled  to  decide 
hurriedly(/). 

Where  the  plaintiff  is  in  a  position  such  that  it  is  his  duty 
to  do  things  which  if  done  in  a  particular  way  would  be 
dangerous,  but  if  done  in  another  would  not,  he  is  bound 
to  adopt  the  latter  course  if  the  choice  is  open  to  him,  and 
not  voluntarily  and  without  necessity  to  expose  himself  to 
danger  {g). 

(d)  Lake  Shore  Ry.  v.  Bangs,  47  Mich.  Wilson  v.  N.  P.  Ry.  Co.,  [26  Minn.  278] ; 
470  (man  jumped  out  where  train  omit-  37  Amer.  Rep.  410;  Cuyler  r.  Dicker,  20 
ted  to  stop  to  save  distress  of  friend);      Hun,  N.  Y.,  177. 

see  also  Kelly  v.  Hannibal  Ry.  Co.,  70  {g)  Union  Ry.  Co.  v.  Leahy,  9  111.  App. 

Mo.  604.  353  (fireman  going  under  engine) ;  see, 

(e)  See  an  article  in  the  Solicitors'  however,  Jeffrey  v.  Keokuk  Ry.  Co.,  66 
Journal  for  February,  1880.  Iowa,  546, 559 ;  Farley  v.  Chicago  Ry .  Co., 

(/)  Gumzr.  Chicago  Ry.  Co.,  52  Wis.  56  Iowa,  337  (standing  near  railway  cars 
672;  Slegrist  v.  Arnot,  10  Mo.  App.  197;      while  shunting).—  [See  Union  Pac.  Ry. 

care  in  trying  to  save  a  small  boy  with  whose  care  he  had  voluntarily  en- 
cumbered himself .— Atlanta  &  C.  A.  L.  Ry.  Co.  v.  Leach,  91  Ga.  419;  17 
S.  E.  Rep.  619. 

In  Cook  V.  Johnson  (58  Mich.  437;  55  Am.  Rep.  703),  it  was  held,  that 
A.  could  not  recover  of  B.  for  burns  received  by  A.  while  trying  to  rescue 
a  horse  from  a  fire  caused  by  the  negligence  of  B.  See  Henry  v.  Cleve- 
land, etc.,  K.  Co.,  67  Fed.  Rep.  426. 


CONTKIBUTORY   NEGLIGENCE ESCAPING   DANGKIl.       485 

It  is  not  necessary  in  all  cases  tliat  the  (luestinn  »if  con- 
tributory negligence  should  bo  loft  to  the  jury.  If  tliero  is 
no  evidence  of  it,  it  caiiiiol  be  left  to  the  jury  any  more 
than  the  defendant'.s  negligence  where  there  is  no  evidence 
of  that  (fi).  If  the  facts  are  clear  and  undisputed,  and 
[392]  show  that  the  plaintiff  was  guilty  of  contributory 
negligence,  the  judge  may  direct  a  nonsuit,  because  if  that  is 

Co.  r.   Kelly,  4  Colo.  App.  3i5;  Zr>   Pac.  {h)  Dublin.  W.  A  W.  Ry .  Co.  r.  SUt- 

Kep.  9-23;  yuebect^cnt.  Ry.  Co.  r.  Lortlo,  tery,  L.  R.  3  App.  Cas.,  bug  particularly 

22 Can.  S.  C.  K.  336;  McGlnty  i'.  Keokuk,  judgment  of  Lord  IVnzance,  at  p    1180, 

68  la.  72S;  Russell  v    Tlllotson,  140  Mass.  also  Jaekoon  t-.  Met.  Ry.,  ante;  Davcy  v. 

801;  Central    Trust  Co.  r.   AVabash  Ry.  L.  A  8.  W.  Ry.,  IJ  Q.  J{.  D.  7u. 
Co..  26  Fed.  Rep.  897.] 

Bscaplngr  Danger. —  When  one  is  placed  by  the  negligence  of  another 
In  a  situation  of  peril  his  attempt  to  escape  danger,  even  by  doing  an  act 
which  is  also  dangerous  and  from  which  injury  results,  is  not  contribu- 
tory negligence  such  as  will  prevent  him  from  recovering  for  an  injury 
If  the  attempt  was  one  such  as  a  person  acting  with  ordinuny  pru«!enco 
might  under  the  circumstances  make. —  Coolc  v.  Parham,  24  Ala.  21,  84; 
Karrr.  Pasks,  40  Cal.  188;  Wesley  City  Coal  Co.  v.  Herler,  84  111.  126; 
Chicago,  etc.,  R.  Co.  v.  Becker,  7G  111.  25:  Frink  r.  Potter,  17  IM.  406, 
410;  Llnnehan  v.  Sampson,  126  Mass.  50G;  Beach  on  Contributory  Ni'g., 
2d  e<1.,  §  40;  Pennsylvania,  etc.,  K.  Co.  v.  Warner,  89  P;i.  St.  59;  Wilson 
V.  Northern  Pac.  K.  Co.,  2G  Minn.  278;;37  Am.  Rep.  rSCy,  .SU)kf8  v.  Sallon- 
stall,  13  Peters,  181;  Stickney  v.  Maidstone,  30  Vt.  73H;  WiNon  r.  Sus- 
quehanna Tp.  Co.,  21  Barb.  G8;  Lund  v.  Tyngsboro,  11  Cash.  5G3;  Page 
c.  Hiicksport,  G4  Me.  51;  Buel  v.  New  York,  etc.,  R.  Co.,  31  N.  Y.  814; 
Lincoln  Rapid  Transit  Co.  v.  Nichols,  37  Neb.  332;  65  N.  Y.  Rep.  872; 
Dunham  Towing  &  W.  Co.  v.  Dandelin,  41  111.  App.  175;  32  N.  E.  Rep. 
'-'58;  .Maclennan  v.  Long  Island  R.  Co.,  62  N.  Y.  Super.  Ct.  22;  Silver 
<'ord  C.  M.  Co.  V.  McDonald,  14  Colo.  191;  2:^  Pac.  Rep.  34G;  Killien  r. 
Hyde,  63  Fed.  Rep.  172;  Stoughton  v.  Manufacturers'  Nat.  Gas  Co.,  159 
I'd.  St.  64;  28  Atl.  Rep.  227;  Ilaney  r.  Pittsburgh,  etc.,  Ry.  Co.,  38  W. 
Va.  570;  18  S.  E.  Rep.  748;  Richmond  &  D.  R.  Co.  v.  Farmer  (Alabama), 
12  So.  Rep.  8G;  White  v.  Cincinnati,  etc.,  R.  Co.,  89  Ky.  478;  12 
S.  W.  Rep.  936;  Austin  &  N.  W.  R.  Co.  p.  Beatty,  73  Tex.  692; 
11  S.  W.  Rep.  858;  Dutzi  v.  Geisel,  23  Mo.  App.  676;  Christian 
r.  Illinois  Central  R.  Co.,  71  Miss.  237;  12  So.  Rep.  710;  Cody  c. 
New  York  &  N.  E.  R.  Co.,  151  Mass.  462;  24  N.  E.  Rep.  402;  McCann  v. 
Sixth  Av.  R,  Co.,  117  N.  Y.  505;  23  N.  E.  Rep.  164;  McClain  v.  Brooklyn 
City  R.  Co.,  116  N.  Y.  459;  22  N.  E.  Rep.  1062;  Penderson  r.  Sealllo  C. 
St.  Ry.  Co.,  6  Wash.  St.  202:  33  Pac.  Rep.  351;  Mobile  &  O.  R.  Co.  v. 
Klein,  43  111.  App.  63;  Chattanooga,  R.  &  C.  R.  Co.  v.  Iluggln.s  89  O*. 


486  CONTRIBUTORY    NEGLIGENCE. 

[393]      clearly  shown  the  plaintiff  has  failed  to  prove  his 
case,  which  is  that  the  damage  is  caused  by  the  negligence  of 

494;  15  S.  E.  Rep.  848;  Woolery  v.  Louisville,  etc.,  Ry.  Co.,  107  Ind.  381 ; 
57  Am.  Rep.  lU;  Graelz  v.  McKenzie,  9  Wash.  St.  696;  35  Pac.  Rep.  377. 

This  is  the  rule,  though  the  person  would  not  have  been  injured  had 
he  not  made  the  attempt  to  escape  the  threatened  danger. —  Iron  Ry.  Co. 
V.  Mowery,  36  Ohio  St.  418 ;  Wilson  v.  Northern  Pac.  R.  Co.,  26  Minn.  278 ; 
Schultz  V.  Chicago,  etc.,  R.  Co.,  44  Wis.  638;  Gumz  v.  Chicago,  etc.,  R. 
Co.,  52  Wis.  672;  Dunham  Towing  &  W.  Co.,  41  111.  App.  175;  32  N.  E. 
Rep.  258;  Diramitt  v.  Hannibal  &  St.  Joe  R.  Co.,  40  Mo.  App.  654.  Or, 
though  the  peril  is  increased  by  the  effort  made  to  avoid  it. —  Gibbons  v. 
Wilkesbarre  &  S.  St.  Ry.  Co.,  155  Pa.  St.  279;  26  Atl.  Rep.  417. 

The  rule  has  been  applied  where  persons  in  apprehension  of  threat- 
ened danger  or  acting  under  the  reasonable  belief  that  they  will  escape 
from  an  impending  danger  attempt  to  leave  a  passenger  vehicle  when 
they  might  have  been  uninjured  had  they  remained. —  Iron  Ry.  Co,  v. 
Mowery,  36  Ohio  St.  418;  38  Am.  Rep.  597;  Wilson  v.  Northern  Pac.  R. 
Co.,  26  Minn.  278;  Smith  v.  St.  Paul,  etc.,  R.  Co.,  30  Minn.  169;  Buel  v. 
N.  Y.,  etc.,  R.  Co.,  31  N.  Y.  314;  Georgia,  etc.,  Banking  Co.  v.  Rhodes, 
56  Ga.  645;  Twomley  v.  Central  Park,  etc,  R.  Co.,  69  N.  Y.  158;  25  Am. 
Rep.  162;  LaPrelle  v.  Fordyce,  4  Tex.  Civ.  App.  391;  23  S.  W.  Rep.  453; 
Budd  V.  United  Carriage  Co.,  25  Ore.  314;  35  Pac.  Rep.  660;  St.  Louis,  I. 
M.  &  S.  Ry.  Co.  V.  Maddry,  57  Ark.  306;  21  S.  W.  Rep.  472;  Slaughter  ?;. 
Metropolitan  St.  Ry.  Co.,  116  Mo.  269;  23  S.  W.Rep.  760;  Denver  Tram- 
way Co.  V.  Reid,  4  Colo.  App.  500;  35  Pac.  Rep.  269;  Meracle  v.  Down,  64 
Wis.  323;  Lawrence  v.  Green,  70  Cal.  417. 

Where  one,  in  endeavoring  to  escape  being  injured  by  a  train  of  cars, 
was  struck  by  an  engine  going  in  an  opposite  direction. —  Pennsylvania, 
etc.,  R.  Co.  V.  Werner,  89  Pa.  St.  59. 

Where  plaintiff,  working  in  a  planing  mill  receiving  boards  near  the 
track  of  a  railroad,  heard  a  cry  of  danger,  dropped  his  load  and  ran  in 
front  of  an  engine  and  was  injured. —  Mark  v.  St.  Paul,  etc.,  R.  Co.,  30 
Minn.  493. 

Where  a  street  car  was  about  to  cross  a  railroad  track  when  a  train 
was  approaching,  and  the  plaintiff  rushed  out  to  the  platform  with  other 
passengers  and  was  injured  by  a  fall. —  Twomley  v.  Central  Park,  etc.,  R. 
Co.,  69  N.  Y.  158,  See  Bischoff  v.  People's  Ry.  Co.,  121  Mo.  216;  25  S. 
W.  Rep.  908;  Shankenbery  v.  Metropolitan  St.  Ry.  Co.,  46  Fed.  Rep.  177. 

Where  the  driver  has  lost  control  of  the  horses  which  are  running 
away  with  a  horse  car  and  the  latter  is  in  danger  of  falling  over  an 
embankment,  a  passenger  is  not  necessarily  chargeable  with  negligence 
in  jumping  from  the  car. —  Dimmey  v.  Wheeling,  etc.,  R.  Co.,  27  W. 
Va.  32. 

It  is  not  contributory  negligence,  as  a  matter  of  law,  for  a  person 
"walking  on  the  sidewalk  to  hold  up  his  hands  to  catch  a  falling  iron  post 


CONTKIBUTORY    NEOLIGENCK  —  SAVINC    LIFK.  487 

[394]  tho  dofondanU  (/);  and  theieforo  tho  question  of 
contributory  negligcnc-e  does    not  iiriso,  l)iit  if    there  is  a 

(i)  Krldgcs  f.  North  London  Uy.  Co.,  Jiickson  v.  Met.  Uy.,tiipra;  ooe  alMiUeo 

L.  K.  0  Q.  15.  377,  at  iniKC  3114  ;  anil  bco  S.  v.   Met.  Ky.  Co.,  L.  U.  8  g.  U.  171  ;  «t  p. 

U.   In   L.   U.   7    II.   L.  ^13,  from  which  It  17.1;  Toomcy  v.  L.  U.  A  S.  C.  K.  Co.,  8  C. 

•eomB  that  in  general   tho  Hafer  courHU  B.  N.  S.  140. 
Is  to  leave  the  question  to  tho  jury ;  see 

when  lie  might  have  avoided  injury  by  stepping  aside. —  Wolff  Mfg.  Co. 
V.  Wilson,  4i;  111.  App.  381.  S.  P.,  San  Antonio  &  A.  1*.  Uy.  Co.  v.  McDon- 
ald (Tex.  Civ.  App.),  31  S.  W.  Kep.  72. 

"The  question  in  such  cases  is  not  what  a  prudent  man  under  ordi- 
nary circumstances  v?ould  have  done,  for  the  suddenness  of  the  emer- 
gency, the  excitement  and  the  influence  of  terror  must  be  taken  Into  the 
account"  (Beach  on  Contributory  Neg.  44,  citing  Johnson  c.  West 
Chester,  etc.,  R.  Co.,  70  Pa.  St.  357;  Linnehau  v.  Sampson,  12*1  Mass. 
600;  30  Am.  Kep.  692;  Pittsburgh,  etc.,  R.  Co.  v.  Rohrman,  13  Week. 
Notes  Cas.  258;  29  Alb.  L.  Jour.  97;  Karr  v.  Parks,  40  Cal.  188;  Galena, 
etc.,  R  Co.  V.  Yarwood,  17  111.  500;  Indianapolis  R.  Co.  v.  Stout,  53  lud. 
143);  "and  what  other  persons  did  at  the  same  time  may  be  given  in 
evidence  to  show  what  may  have  been  reasonably  prudent  undt-r  tho 
circumstances. —  Twomley  «.  Central  Park,  etc.,  R.  Co.,  G9  N.  Y.  15s;  25 
Am.  Rep.  1G2;  Mobile,  etc.,  R.  Co.  v.  Ashcraft,  48  Ala.  15." 

Where  one  places  himself  in  a  position  of  danger  for  the  purpose  of 
saviug  the  life  of  another  and  is  thereby  injured,  his  conduct  will  not  be 
deemed  negligent;  for  "  the  law  has  so  high  a  regard  for  human  life,  that 
it  will  not  impute  negligence  to  an  effort  to  preserve  it,  unless  made 
under  such  circumstances  as  to  constitute  rashness  in  the  judgment  of 
prudent  persons." —  Eckert  v.  Long  Island  R.  Co.,  43  N.  Y.  602. 

Where  one  saw  a  child  about  to  be  run  over  by  a  train  of  cars,  and 
rushed  upon  the  track  and  saved  it  from  danger,  thereby  losing  his  life, 
it  was  held  that  unless  the  act  was,  under  the  circumstances,  rash  and 
reckless,  and  this  was  a  question  for  the  jury,  his  representative  might 
recover  damages. —  Id.  S.  P.,  Peyton  v.  Texas  &  P.  Ry.  Co.,  41  La.  Ann. 
8G1;  6  So.  Rep.  690.  See  Linnehan  v.  Sampson,  126  Mass.  506;  Gibner 
V.  Slate.  137  N.  Y.  1;  33  N.  E.  Rep.  142;  Penn.sylvania  Co.  v.  Langendorff, 
48  Ohio  St.  316;  28  N.  E.  Rep.  172;  Henry  v.  Cleveland,  etc.,  R.  Co.,  67 
Fed.  Rep.  426. 

And  where  a  railroad  engineer  nobly  stuck  to  his  engine  at  a  time  of  a 
threatened  collision,  expecting  to  save  the  train  froui  <langer,  and  was 
killed.  It  was  held  by  the  Supreme  Court,  reversing  the  court  below,  that 
such  conduct  was  not  contributory  negligence,  and  that  his  widow  might 
recover  damages  for  his  death.— Cotterill  v.  Chicago,  etc.  R.  Co.,  47 
Wis.  634 ;  32  Am.  Rep.  796. 

The  court  said :  "  The  evidence  presents  an  example  or  heroic  bravery 
and  fidelity  to  duty  at  the  post  of  danger  most  praiseworthy  and  com- 


488  CONTRIBUTORY  NEGLIGENCE. 

question  of  fact  upon  the  issue  of  coutributory  negligence, 
or  there  are  two  reasonable  but  different  views  which  may 
be  taken,  such  questions  must  be  left  to  the  jury  {j).  Such 
questions  are  often  very  difficult  for  the  jury  to  decide,  and 
each  case  will  depend  upon  its  own  peculiar  facts,  and 
cannot  be  settled  by  any  general  rules.  For  instance,  in 
the  case  of  Wilkinson  v.  Fairie  (^),  where  a  carman  was 

(j)  Seeijer  Lord  Penzance  In  D.W.&  (i-)  32  L.  J.  Ex.  73;  1H.&  0.613. 

W.  Ry.  V.  Slattery,  supra;  see  Jackson  v. 
Met.  Ry.,  supra. 


mendable,  and  an  occurrence  worthy  of  lasting  record  in  the  book  of 
heroic  deeds.  *  *  *  Who  shall  sit  in  judgment  upon  this  brave  engineer 
to  coolly  determine  the  alternative  rislss  and  chances  vphich  he  is  compelled 
to  take  instantly  with  scarcely  a  moment  of  time  for  deliberation  in  such 
a  terrible  emergency.  It  will  not  do  to  establish  a  rule  by  which  the 
duty  of  an  engineer  in  such  an  emergency  may  be  measured  and  dictated 
by  cowardice  and  timidity,  and  by  which  his  standing  at  his  post  and 
facing  danger,  will  be  carelessness  and  negligence.  The  defense  resting 
upon  such  a  theory  in  this  case  cannot  be  sanctioned." — Pennsylvania 
Co.  V.  Eoney,  89  Ind.  453;  46  Am.  Rep.  173;  contra,  Evansville,  etc.,  R. 
Co.  V.  Hiatt,  17  Ind.  102. 

In  the  case  cited  supra  (Pennsylvania  Co.  v.  Roney),  Elliott,  J.,  said: 
"  An  engineer  who  remains  at  his  post  and  faces  danger,  is  not  to  be 
deemed  negligent.  An  engineer  in  charge  of  a  train  laden  with  men, 
women  and  children,  is  not  bound  to  leap  from  his  engine  to  escape  im- 
pending danger.  If  he  believes  his  duty  requires  him  to  do  what  he  can 
to  save  those  under  his  charge,  and  he  braves  death  in  the  discharge  of 
that  duty,  the  law  has  for  him  no  censure,  but  has,  on  the  contrary,  high 
commendation  and  respect."  See  Hass  v.  Chicago,  etc.,  Ry.  Co.  (Iowa), 
67  N.  W.  Rep.  894. 

In  the  case  of  Gross  v.  Pennsylvania,  etc.,  R.  Co.,  (62  Hun,  619;  16 
N.  Y.  S.  Rep.  616),  an  engineer  who  jumped  from  his  engine  to  avoid 
the  danger  of  an  apparent  collision  with  another  train  was  held  to  be 
entitled  to  compensation  for  the  injuries  sustained.  S.  P.,  Louisville  & 
N.  R.  Co.  V.  Rains  (Ky.),  23  S.  W.  Rep.  605.  See  Haney  v.  Pittsburgh, 
etc.,  Ry.  Co.,  38  W.  Va.  570;  18  S.  E.  Rep.  748. 

(0  Emry  w.  Raleigh  &  G.  R.  Co.,  109  N.  C.  589;  14  S.  E.  Rep.  352; 
Warmington  v.  Atchison,  etc.,  R.  Co.,  46  Mo.  App.  159;  Apsey  v.  Detroit^ 
L.  &N.  R,  Co.,  83  Mich.  440;  47  N.  W.  Rep.  513;  Potter  v.  Moran,  61 
Mich.  60;  27  N.  W.  Rep.  854;  Popp  v.  New  York,  etc.,  R.  Co.,  7  N.  Y.  S. 
Eep.  249;  Columbus  &  W.  Ry.  Co,  i).  Bradford,  86  Ala.  574;  6  So.  Rep.  90; 
Lissa  V.  Goodkind,  4  N.  Y.  S.  Rep.  835;  Chautauqua  Lake  Ice  Co.  v.  Me- 


CXJNTRIBUTOUy    NKGLIOKNCE.  489 

sent  to  fetch  some  goods  at  dofondiint's  warohouse,  and  he 
weut  along  a  djirk  passage  and  fell  down  a  staircaso,  Ikaiu- 

Luckey  (Pa.),  11  Atl.  Rep.  61C;  Mynnlng  v.  Detroit,  L.  &  N.  It.  Co.,  Cj 
Mich.  t;77;  35  N.  W.  Rep.  811;  nouhn  v.  Chlcaijo,  etc.,  Ky.  Co.,  152  III- 
223;  38  N.  E.  Rep.  549.      Ste  11  Am.  St.  Rep.  73(5,  note. 

(>)  Elyton  Land  Co.  v.  Miugea,  81)  Ala.  521;  7  So.  Rep.  COG;  Arkan- 
sas Tel.  Co.  r.  Ratterce,  67  Ark.  -il'D;  21  S.  W.  Rep.  105'J;  Harmon  v. 
Wa.shington  &  G.  R.  Co.,  7  Mackey,  25.'i;  Morgan  v.  Southern  Pac.  Co., 
«t5Cal.  501;  30  Pac.  Rep.  (JOl;  Orr  v.  Garabold,  85  Ga.  373;  11  S.  K. 
K«p.  778;  Uobbold  v.  Chicago  S.  R.  Co.,  44  111.  App.  418;  Cincinnati,  H. 
&  I.  R.  Co.  V.  Claire,  G  Ind.  App.  390;  33  N.  E.  Kep.  918;  Elckel  v.  Sen- 
henn,  2  Ind.  App.  208;  28  N.  E.  Rep.  193;  Fuliiara  v.  Muscatine,  79  la. 
43G;  Laugan  r.  City  of  Atchison,  35  Kau.  318;  11  Pac.  Rep.  3H;  Nugent 
r.  Boston,  etc.,  Corp.,  80  Me.  G2;  12  All.  Rep.  797;  Mobile  &  O.  R.  Co., 
c.  Mullins,  70  Miss.  730;  12  So.  Rep.  82G;  Connolly  a.  City  of  Waltham,  166 
Mass.  :iG8;  31  N.  E.  Rep.  302;  llendrickson  v.  Meadows,  1.".4  Mass.  5'J9;  28 
N.  E.  Rep.  1054;  Benjamin  v.  Ilolyoke  St.  Ry.  Co.,  IGO  Mass.  3;  35  X.  E. 
Kep.  95;  Kendall  v.  Kendall,  147  Mass.  482;  18  N.  E.  Rep.  233;  Purtell  r. 
Jordan,  166  Mass.  573;  31  N.  E.  Rep.  G52;  Craft  v.  Parker,  Webb  &  Co., 
96  Mich.  245;  55  N.  W.  Rep.  812;  Kalemback  v.  Michigan  Cent.  H.  Co.,  87 
Mich.  500;  49  N.  W.  Rep.  1082;  Ribble  v.  Starrat,  83  Mich.  140;  47  N.  W. 
Kep. 244;  Brezee r.  Powers, 80 Mich.  172;45  N.W.Rep.  130;  Eugelr. Smith, 
«2Mich.  1;  46  N.  W.  Rep.  21;  Ashton  v.  Detroit  City  Ry.  Co.,  78  Mich. 
687;  44  N.  W.  Rep.  141;  Bradley  v.  Ft.  Wayue  &  E.  Ky.  Co.,  94  Mich.  35; 
63  N.  W.  Rip.  915;  Laethem  v.  Ft.  Wayne  &  B.  I.  Ry.  Co.,  100  Mich.  297; 
68  N.  W.  Rep.  99G;  Dougherty  v.  Missouri  R.  Co.,  97  Mo.  251  ;  8  S.  W. 
Rep.  900;  11  S.  W.  Rep.  251;  Walton  v.  Ackerman,  49  N.  J.  L.  234;  10 
Atl.  Rep.  709;  McLaughlin  v.  Arrafleld,  58  Hun,  376;  12  N.  Y.  S.  Rep. 
164;  Buhrens  v.  Dry  Dock,  etc.,  Ry.  Co.,  53  Hun,  571;  6  N.  Y.  S.  R-p. 
224;  Galvin  v.  City  of  New  York,  112  N.  Y.  223;  19  N.  E.  Rep.  f.75; 
Francis  c.  New  York  Steam  Co.,  114  N.  Y.  380;  21  N.  E.  Rep.  988;  Atkln. 
•on  r.  Abraham,  45  Hun,  238;  Kane  v.  New  York,  etc.,  R.  Co.,  132  N. 
Y.  160;  30  N.  E.  Rep.  25G,  affirming  9  N.  Y.  S.  Rep.  879;  Emry  r. 
Balelgh  &  G.  R.  Co.,  102  N.  C.  209;  9  S.  E.  Rep.  139;  Malono  v.  Pitts- 
burgh &  L.  E.  R.  Co.,  152  Pa.  St.  390;  25  Atl.  Rep.  G38;  31  W.  N.  C.  407; 
Pennsylvania  R.  Co.  v.  Zink,  12G  Pa.  St.  288;  17  Atl.  Rep.  GI4;  Gates  v. 
Pennsylvania  R.  Co.,  154  Pa.  St.  5GG;  2G  Atl.  Ri-p.  598;  32  W.  N.  V.  .13.1; 
Hartzig  V.  Lehigh  Val.  R.  Co.,  154  Pa.  St.  364;  26  Atl.  Rep.  310;  .Martin 
V.  Mi-ssouri  Pac.  Ry.  Co.,  3  Tex.  Civ.  App.  133;  22  S.  W.  Rep.  195;  Den- 
ham  0.  Trinity  Co.  L.  Co.,  73  Tex.  78;  II  S.  W.  Rep.  151;  Brown  o.  Sul- 
livan, 71  Tex.  470;  11  S.  W.  R^p.  288;  Smith  v.  Rio  Grande  W.  Ry.  Co., 
9  Utah,  141 ;  33  Pac.  Rep.  G2G;  Dougherty  v.  West  Superior  I.  &  8.  Co. 
(Wis.),  60  N.  W.  Rep.  274;  Brown  v.  Brooks,  85  Wis.  290;  55  N.  W. 
Rep.  395;  Brennan  v.  Friendship,  G7  Wis.  22:?;  Seefeld  n.  Chicago,  etc., 
Ry.  Co.,  70  Wis.  21G;  35  N.  W.  Rep.  278;  Johnson  v.  Lake  Superior  T.  & 


490  CONTRIBUTORY  NEGLIGENCE. 

well,  B.  directed  a  nonsuit,  saying:  "  If  it  was  so  dark  that 
the  plaintiff  could  not  see,  he  ought  not  to  have  proceeded 
without  a  light ;  if  it  was  sufficiently  light  for  him  to  see, 
he  might  have  avoided  the  staircase."  A  similar  dilemma 
having  been  put  by  counsel  in  Low  v.  G.  T.  Ry.  (?),  Bar- 
row, J.,  delivering  the  judgment  of  the  Court  (consisting 
of  six  judges),  said  that  "  these  questions  are  not  to  be  dis- 
posed of  by  a  little  neat  logic,  but  can  best  be  determined 
by  practical  men  on  a  view  of  all  the  facts  and  circum- 
stances bearing  on  the  issue.  A  man  may  be  deceived  by 
a  half  light,  and  using  due  care  himself  may  meet  with  an 
accident  by  falling  into  a  chasm  where  he  was  not  bound  to 
expect  to  find  one." 

In  some  of  the  cases,  the  court,  in  considering  the 
question  whether  there  was  any  evidence  to  go  to  the  jury 
of  the  defendant's  negligence,  have  inevitably  been  led  to 
[395]  consider  the  conduct  of  the  plaintiff;  but  it  is 
obvious  that  the  question  of  contributory  negligence  does 
not  arise  until  the  defendant's  negligence  has  been  proved, 
and  therefore  it  must  be  remembered  that  the  court  is  only 
speaking  of  the  plaintiff's  conduct  so  far  as  it  throws  light 
upon  the  question  whether  the  defendant  has  been  shown 
to  have  been  guilty  of  any  negligence  at  all  {m). 

In  proceedings  for  damages,  where  there  has  been  negli- 
gence in  both  the  parties  to  a  collision  between  ships,  the 
rule  is  to  divide  the  loss  between  them  (n) ;  and  in  the 

(?)  72  Me.  313;  39  Amer.  Rep.  331.  (n)  See  Williams  v.  Bruce,  Ad.  Prac. 

(to)  See  judgment  of  Lord  Penzance       72;  and  see  Judicature  Act,  1873,  s.  25  (9). 
in  D.  W.  &  W.  Ry.  Co.  v.  Slattery,  L.  R. 
3App.  Cas.  at  p.  1177. 


T.  Ry.  Co.,  86  Wis.  64;  56  N.  W.  Rep.  161;  New  Orleans  &  C.  R.  Co.  v. 
Schneiper,  60  Fed.  Rep.  210;  8  C.  C.  A,  571 ;  Washington  &  G.  R.  Co.  v. 
Tobriner,  147  U.  S.  571;  13  Sup.  Ct.  Rep.  557;  Grand  Trunk  Ry.  Co.  v. 
Ives,  144  U.  S.  408;  12  S.  Ct.  Rep.  679. 

(n)  In  The  Clara  (102  U.  S.  203),  it  is  said,  "  where  the  fault  is  wholly 
on  one  side  the  party  in  fault  must  bear  his  own  loss,  and  compensate 
the  other  party,  if  such  party  have   sustained  any  damage.     If  neither 


AGGUAVATION    OF   INJURY.  4 HI 

American  courts  it  Im.s  been  ht'kl  that  if  the  phiiiitifFs  act 
has  agi^iavated  the  extent  of  the  damage,  lio  can  only 
recover  what  he  has  suffered  from  the  defendant's  act 
alone  (o);   but  this  has  not  been  the  rule  in  our  eourts, 

(o)  Sborman  f.  Fall  River  Iron  Co.,  2  Uy.  Co.,  24  Hurb.  273;  I^awrcnco  r.  Houi- 
Allen,  fi24;  Cbaso  v.  Now  York  Central       atonic  Ry.  Co.,  29  Conn.  ;«K);  (iico<n/raJ. 

party  Is  in  fault,  neither  is  entitled  to  compensation  from  the  other. 
II  both  are  in  fault  the  damages  will  be  divided." —  1  Parsons  on  Ship. 
&.  Adin.,  525,  52(5;  The  Morning  Light,  2  Wall.  550;  Union  Steamship  Co. 
^.  New  York,  etc.,  Co.,  24  How.  307.  See,  also,  The  Schooner  Catherine 
r.  Dickinson,  17  How.  170;  Foster  v.  The  Miranda,  U  McLean,  221; 
Desty  on  Ship.  &  Adm.,  §  403;  St.  Louis,  etc.,  Line  v.  lied  Kiver,  etc., 
Line,  22  Fed.  Rep.  347;  Simpson  v.  The  State  of  Cal.,  64  Fed.  Hep.  404; 
Hawkins  v.  The  Viola,  00  Fed.  Rep.  29G;  Fisher  v.  The  Hrinton,  5;>  Fed. 
Rep.  714;  The  Anerly,  58  Fed.  Rep.  7'J4;  Tiie  Queen,  40  Fed.  Rep.  <;i>4 ; 
The  Dorris  Eckhoff,  41  Fed.  Rep.  150;  McCabe  v.  Old  Domnion  S.  S.  Co., 
;'.l  Fed.  Rep.  234;  The  Haverton,  31  Fed.  Rep.  6(.3;  The  Fred  \V.  Chase, 
31  Fed.  Rep.  91;  The  Sara  Brown,  29  Fed.  Rep.  050;  The  I'lymothean,  68 
Fed.  Rep.  395;  The  Gulf  Steam,  64  Fed.  Rep.  809;  The  Max  Morris  v. 
Curry,  137  U.  S.  1 ;   US.  Ct.  Rep.  29. 

That  contributory  negligence  bars  an  action  at  law. —  Sec  Owners  of 
the  Steamboat  Farmer  v.  McCraw,  26  Ala.  189;  Broadwell  v.  Swigert,  7 
B.  Mon.  39;  Arctic  Fire  Ins.  Co.  v.  Austin,  69  N.  Y.  470.  Contra,  Ander- 
son r.  The  Ashebrooke,  44  Fed.  Rep.  124;  Finch  u.  The  Lighter  Mystic, 
44  Fed.  Rep.  398;  The  Max  Morris,  28  Fed.  Rep.  881. 

(o)  While  as  stated  in  the  text  if  the  plaintiff's  act  has  aggravated  the 
extent  of  the  damage,  he  can  only  recover  what  he  has  suffered  from  the 
defendant's  act,  this  is  only  true  when  the  injury  caused  by  the  plain- 
tiffs negligence  is  capable  of  a  distinct  separation  from  the  injury  cau.ncd 
by  defendant.— Gould  v.  McKenna,  86  Fa.  St.  297;  27  Am.  Rep.  705; 
Matthews  v.  Warner,  29  Gratt.  670;  Stebbins  v.  Central,  etc.,  R.  Co., 
64  Vt.  464;  41  Am.  Rep.  855;  Wright  v.  Illinois,  etc.,  Telegraph  Co., 
20  la.  195;  Hibbard  v.  Thompson,  109  Mass.  280;  Hunto.  Lowell  Gas  Co., 
1  Allen,  343;  Fay  v.  Parker,  53  N.  H.  342;  Denver  &  R.  G.  Co.  v.  Morton, 
8  Colo.  App.  155;  32  Pac.  Rep.  345. 

This  rule  has  been  adopted  in  Tennessee  and  Georgia.—  Nashville, 
etc.,  R.  Co.  V.  Carroll,  6  Heisk.  347;  Whirley  v.  Whiteman,  1  Head,  G19; 
Atlanta,  etc.,  R.  Co.  v.  Ayers,  53  Ga.  12;  Postal  Telegraph  Cable  Co.  v. 
Zopfl,  93  Tenn.  309;  24  S.  W.  Rep.  633;  Central  R.  &  H.  Co.  r.  Smith, 
78  Ga.  694;  3  S.  E.  Rep.  397;  2  Thomp.  on  Neg.  1103;  Beach  on  Contrib- 
utory Neg.  75. 

One  of  the  American  cases  cited  by  the  author  Is,  it  would  appear,  an 
illustration  of  this  rule.     In  Sherman  v.  Fall  River  Iron  Co.  (2  Allen), 


492  CONTRIBUTORY   NEGLIGENCE. 

but  the  defendant  has  been  held  liable  (if  at  all)  for  the 
whole  damage  (/>),  except  where  the  effect  of  the  plaintiff's 
negligence  is  separable  from  that  of  the  defendant  (q). 

ip)  Greenland  v.  Chaplin,  5  Ex.  243;  {q)  See  the  cases,  ante,  Ch.  I.,  Proxl- 

and  see  ante,  Ch.  I.,  as  to  rule  relating  mate  Causes;  and  see  post,  Ch.  vm., 
to  proximate  damage.  Damages. 

524,  it  was  held  that  a  lessee  might  maintain  an  action  against  one  who 
laid  gas  pipes  in  neighboring  streets  so  imperfectlj  that  gas  escaped 
therefrom  through  the  ground  and  into  the  water  of  the  well  upon  prem- 
ises hired  and  used  by  him  for  a  livery  stable  thereby  rendering  it  unfit 
for  use,  and  making  the  enjoyment  of  the  estate  less  beneficial,  although 
the  nuisance  might  have  existed  in  a  less  degree  when  the  premises 
were  hired ;  and  that  a  recovery  might  be  had  for  the  inconvenience  to 
which  plaintiff  was  thereby  subjected,  and  the  expenses  incurred  in 
reasonable  and  proper  attempts  to  exclude  gas  from  the  well,  but  not  for 
an  injury  caused  by  allowing  his  horses  to  drink  the  water,  after  he  knew 
that  it  was  corrupted  by  the  gas. 

In  Chase  u.  New  York  Central  R.  Co.  (24  Barb.  273),  it  was  held  that 
in  an  action  brought  to  recover  damages  for  injuries  done  to  plaintiff's 
house,  grounds,  fruit  trees,  etc.,  by  water  alleged  to  have  been  turned 
on  to  the  plaintiff's  land  by  the  defendants  in  constructing  a  railroad,  it 
was  proper  to  charge  the  jury  that  the  rule  of  damages  in  that  class  of 
cases  was  the  difference  between  the  value  of  the  plaintiff's  premises  be- 
fore the  injury  happened,  and  the  value  immediately  after  the  injury, 
taking  into  account  only  the  damages  which  resulted  from  the  defend- 
ant's acts. 

In  Lawrence  v.  Housatonic  R.  Co.  (29  Conn.  390),  the  defendants 
claimed  that  the  injury  of  plaintiff  was  originally  slight,  and  was  aggra- 
vated by  his  neglect  to  take  care  of  himself  and  to  follow  the  advice  of 
his  physician,  and  prayed  the  court  to  instruct  the  jury  that  if  plaintiff 
did  not  regard  the  advice  of  his  physician,  they  had  a  right  to  infer  that 
the  injury  was  thereby  aggravated  and  the  plaintiff  could  recover  for 
nothing  after  his  own  imprudence.  The  court  did  not  so  instruct  the 
jury  but  directed  them  that  if  they  should  find  a  verdict  for  the  plaintiff, 
he  was  entitled  to  recover  full  compensation  for  all  the  mental  and  phy* 
sical  injury  which  they  should  find  on  the  evidence  that  he  had  sustained 
by  reason  of  the  defendant's  negligence.  On  a  motion  of  the  defend- 
ant's for  a  new  trial,  it  was  held  that  this  direction  was  proper. 

It  is  the  rule,  however,  that  a  patient  cannot  recover  for  injuries 
consequent  upon  the  unskillful  or  negligent  treatment  by  his  physician,  if 
his  own  negligence  directly  contributed  to  them  to  an  extent  which  can 
not  be  distinguished  and  separated. —  Hibbard  v.  Thompson,  109  Mass. 
28G;  Potter  v.  Warner,  91  Pa.  St.  362;  36  Am.  Rep.  668;  Young  v.  Mason, 
8  Ind.  App.  264;  35  N.  E.  Rpp.  521;  Becker  V.  Janenski,  27  Abb.  N.  C.  45; 


CONTUIBUTOUY    NEOLIOENCE  —  MASTEft   AND   8EUVANT.       493 

[396]  The  cases  where  a  servant  has  entered  upon  a  par- 
ticular cniployinont  with  notice  of  its  dangerous  condition  uro 

15  N.  Y.  S.  R»'p.  C75;  Da  Bols  v.  Becker,  4  N.  Y.  S.  Rep.  TCS;  Lower  ». 
Frauks,  115  In«K  334;  17  N.  E.  Kep,  G30;  Nelson  v.  IlarrlnBlon,  72  Wis. 
fi91;  40  N.  W.  Kep.  2l'8;   Swanson  v.  French  (la  ),  CI  N.  W.  Hop.  407. 

Bui  If  he  has  exercised  ordinary  care  in  the  sciection  of  a  coinpcU-nt 
physician  or  surgeon,  and  tiu!  injury  is  ajii^ravaied  by  lliu  unskilled  treat- 
ment of  sncli  physician  or  surjieon,  the  defendant  may,  nevi-rtheli-ss,  be 
llahle  in  damaj^es  for  the  unfavorable  result. —  Pullman  Palace  Car  Co.  r. 
Bluhm,  109  111.  20;  Houston,  etc.,  K.  Co.  t?.  IIollls,  S.  C.  Tex.,  4  Tex. 
Law  Uev.  423;  Nagel  v.  The  Missouri  Pac.  Ky.  Co.,  75  Mo.  G63;  42  Am. 
Rep.  418. 

Where  plaintiff's  arm  was  broken  through  the  noglifjent  conduct  of  Ihi- 
defendant  and  the  defendant  exercised  ordinary  care  in  the  selection  of  a 
surgeon,  who  failed  to  treat  It  properly,  so  that  the  bones  failed  to  unite, 
making  a  false  joint,  it  was  held  that  the  defendant  was  liable  in  damages 
for  the  unfavorable  result. —  Pullman  Palace  Car  Co.  v.  Uluhm,  supni. 
See  Vanhooser  v.  Berghoff,  90  Mo.  487. 

And  when  personal  injuries  result  from  the  negligence  of  defendant  he 
is  liable  for  the  damages  actually  sustained  although  they  are  aggravateiJ 
by  a  tendency  to  disease  on  the  part  of  the  person  Injured. —  McNamara 
r.  The  Vdlage  of  Clintonville,  G2  Wis.  207. 

Where  defendant's  negligence  caused  plaintiff's  miscarriage  and  a  few 
days  afterwards  she  exposed  herself  to  bad  wt-ather  thereby  aggravating 
her  condition,  it  was  held,  that  if  she  went  out,  not  carelessly  and  reck- 
lessly, but  because  she  "  felt"  well  enough,  she  was  justilled  in  doing 
80.— Hope  r.  Troy  &,  L.  R.  Co.,  40  Hun,  438. 

Even  in  an  action  for  malf^ractice  the  rule  of  apportionment  of  damages 
prevails  where  that  is  possible. —  Hibbard  v.  Thompson,  109  .Mass.  28t;; 
SThorap.  on  Neg.  1215. 

Servant  Remaining  in  Master's  Service  -with  Knowledge  of  Risk.— 
In  some  cases  it  is  held  that  the  servant,  by  remaining  in  llie  raasi<  r's 
employment  after  discovery  of  a  defect  in  the  machinery  or  tools,  is 
deemed  to  have  assumed  the  risks  incident  to  the  service,  and  to  have 
waived  any  claim  for  damages  in  case  of  Injury.  — Fones  v.  Pldlllps.  39 
Ark.  17;  Hayden  v.  Mnfg.  Co.,  29  Conn.  548;  Georgia,  etc,  R.  Co.  r.  Ken- 
ney,  58  Ga.  485;  Chicago,  etc.,  R.  Co.  v.  Asbury,  84  111.  429;  Sullivan  r. 
Louisville  Bridge  Co.,  9  Bush,  81;  Buzzell  v.  Mnfg.  Co.,  48  Me.  113; 
Foley  V.  Chicago,  etc.,  R.  Co.,  48  Mich.  622;  Clark  r.  St.  Paul,  etc.,  R. 
Co.,  28  Minn.  128;  Dale  v.  St.  Louis,  etc.,  R.  Co.,  63  Mo.  455;  Cowl.-s  r. 
Richmond,  etc.,  R.  Co.,  84  N.  C.  309;  Kelley  v.  Silver  Spring  Co.,  12  R. 
L  112;  Hough  V.  Texas,  etc.,  R.  Co.,  100  U.  S.  213;  Dorsey  r.  Phillips,  42 
Wis.  583;  Beall  v.  Pittsburgh,  etc.,  Ry.  Co.;  38  W.  Va.  525;  18  S.  E.  Rep. 
729;  Little  Rock  &  M.  R.  Co.  v.  Moseby,  5C  Fed.  Rep.  1009 ;  »'.  CCA.  225; 
Louisville,  E.  &  St.  L.  C.  R.  Co.  v.  Allen,  47  HI.  App.  465;   Rooney  v. 


494  CONTRIBUTORY  NEGLIGENCE. 

[397]  somewhat  peculiar,  but  it  must  be  remembered  that 
there  is  a  contract,  or  mutual  consent,  on  both  sides  to  accept 

Sewall  &  D.  C.  Co.  (Mass.),  36  N.  E.  Rep.  789;  Michael  v.  Stanley,  76 
Md.  464;  23  Atl.  Rep.  1094;  St.  Louis,  A.  &  T.  Ry.  Co.  v.  Kelton,  55  Ark. 
483;  18  S.  W.  Rep.  933;  Missouri  Pac.  Ry.  Co.  v.  Somers,  78  Tex.  439; 

14  S.  W.  Rep.  779;  Green  v.  Cross,  79  Tex.  130;  15  S.  W.  Rep.  220;  New 
York,  L.  E.  &  W.  R.  Co.  v.  Lyons  (Pa.),  13  Atl.  Rep.  205;  Nelling  v. 
Industrial  Mfg.  Co.,  78  Ga.  260;  Lucey  v.  Hannibal  Oil  Co.  (Mo.),  31  S. 
W.  Rep.  340;  Norton  v.  Louisville  &  N.  R,  Co.  (Ky.),  30  S.  W.  Rep.  599. 
An  emploj'e  does  not  assume  the  risk  unless  he  knows  or  reasonably 
apprehends  the  danger. —  Lee  v.  Southern  Pac.  R.  Co.,  101  Cal.  118;  35 
Pac.  Rep.  572;  Davidson  v.  Cornell,  132  N.  Y.  228;  30  N.  E.  Rep.  573. 

In  others  it  is  held  that  a  servant,  by  remaining  in  the  service  of  his 
master  after  discovery  of  a  defect  in  the  machinery  or  of  the  incompe- 
tency of  a  fellow-servant,  is  guilty  of  contributory  negligence. —  Lumley 
f.  Caswell,  47  la.  159;  AUerton  Packing  Co.  v.  Egan,  86  111.  253;  Clark  v. 
St.  Paul,  etc.,  R.  Co.,  28  Minn.  128;  Crutchfleld  v.  Richmond,  etc.,  R.  Co., 
78  N.  C.  300;  Smith  v.  The  Seraphis,  49  Fed.  Rep.  393;  Birmingham  Ry. 
&  E.  Co.  V.  Allen,  13  So.  Rep.  8;  Carroll  v.  Pennsylvania  Coal  Co.  (Pa.), 

15  Atl.  Rep.  688;  Murtaugh  v.  New  York,  etc.,  R.  Co.,  49  Hun,  456;  3  N. 
Y.  S.  Rep.  483;  Woodward  Iron   Co.  v.  Jones,  80  Ala.  123. 

But  where  the  defect  is  slight  and  of  such  a  character  as  that  a  prudent 
man  would  run  the  risk  of  Injury,  it  has  been  held  that  the  servant  may, 
though  he  continues  in  the  service  with  the  knowledge  of  the  fact,  re- 
cover.—  Kroy  V.  Chicago,  etc.,  R.  Co.,  32  la.  357;  Buzzell  v.  Mnfg.  Co., 
48  Me.  113;  Patterson  v.  Pittsburg,  etc.,  R.  Co.,  76  Pa.  St.  389;  Greene 
V.  Minneapolis,  etc.,  R.  Co.,  31  Minn.  248;  Conroy  u.  Vulcan  Iron  Works, 
62  Mo.  35;  Flynn  v.  Kansas,  etc.,  R.  Co.,  78  Mo.  195;  Hawley  u.  New 
York,  etc.,  R.  Co.,  82  N.  Y.  370;  Hamilton  v.  Rich  Hill  C.  M.  Co.,  108 
Mo.  364;  18  S.  W.  Rep.  977;  Chicago  &  G.  W.  R.  Co.  v.  Travis,  44 
111.  App.  466;  Thorpe  v.  Missouri  Pac.  Ry.  Co.,  89  Mo.  650;  2  S.  W. 
Rep.  3. 

And  if  the  master  has  promised  to  repair  the  defect  within  a  reasonable 
time,  the  fact  that  the  servant  subsequently  remains  in  his  employment 
will  not  of  itself  constitute  contributory  negligence  on  the  part  of  the 
servant.  That  is  a  question  for  the  jury  to  determine. —  Hough  v.  Rail- 
road Co.,  100  U.  S.  115;  Conroy  v.  Vulcan  Iron  Works,  62  Mo.  35;  Lan- 
ing  V.  Railroad  Co.,  49  N.  Y.  621;  Moak's  Underbill  on  Torts,  61; 
Manufacturing  Co.  v.  Morrissey,  40  Ohio  St.  148;  48  Am.  Rep.  669;  Roth- 
enberger  v.  Northwestern  C.  M.  Co.  (Minn.),  59  N.  W.  Rep.  531;  Chicago 
Drop  F.  &  F.  Co.  v.  Van  Dam,  149  111.  337;  36  N.  E.  Rep.  1024;  Burling- 
ton &  C.  R.  Co.  V.  Liehe,  17  Colo.  280;  29  Pac.  Rep.  175;  McDowells 
Chesapeake,  etc.,  R.  Co.  (KJ^.),  18  S.  W.  Rep.  871;  Stephenson  v.  Dun- 
can, 73  Wis.  404;  41  N.  W.  Rep.  337;  Atchison,  T.  &  S.  F.  R.  Co.  »• 
Midgett  CKan.  App.),  40  Pac.  Rep.  995;  Eddy  v.  Bodkin  (Tex.  Civ.  App.), 


CONTKIBUTOKY    NEGLIGENCE  —  MA8TEIC    AND   SERVANT.       495 

tho  [398]  existing  state  of  things.  Tliodefondantissaidto 
be  guilty  of  negligence  in  keeping  his  premiscg  or  machinery 

S8  8.  W.  Rep.  54;  Indianapolis  Union  Ry.  Co.  v.  Ott  (Ind.  App.),  38  N. 
E.  Kep-  8-1-- 

It  is  not  enough  that  the  servant  complained  of  the  defect. —  Ford  t>. 
Fitchhurg  R.  Co.,  110  Mass.  240;  Snowu.  Railroad  Co.,  8  Alk-n,  411 ;  I'lU- 
terson  r.  liailroad  Co.,  7G  Pa.  St.  389.  Aa  where  the  master  In  acknowl- 
edging the  defect  .said  that  he  was  busy. —  Brei};  v.  Chicago  &  W.  M.  Ry. 
Co.,  98  Mich.  222;  57  N.  W.  Kep.  118. 

His  right  of  action  depends  upon  the  promise.  But  this  does  not  ex- 
cuse the  servant  from  the  exercise  of  ordinary  care  on  his  part;  it 
removes  from  the  servant  the  burden  of  establishina;  due  care  and  Im- 
poses it  upon  the  master. —  Mr.  Kelly's  note  to  Union  Manufacturing  Co. 
c.  .Morrissey,  snpru,  22  Am.  Law.  Reg.  581.  See  Indianapolis  i  St.  L.  Ry. 
Co.  V.  Watsou,  114  Ind.  20;   14  N.  E.  Rep.  721;   15  N.  E.  Rep.  824. 

It  is  there  pointed  out  tliat  the  casual  connection  between  the 
employer's  negligence  and  the  injury  is  broken,  not  on  the  expiration  of 
a  reasonable  time  to  repair  the  defect,  but  at  the  time  the  defect  becomes 
so  plain  that  a  person  of  ordinary  care  would  not  assume  the  risk  incon- 
tinolng  to  work  the  defective  machinery. 

In  Parody  v.  Chicago,  etc.,  R.  Co.  (15  Fed.  Rep.  205),  where  a  master 
expressly  promises  to  repair  a  defect  in  the  machinery  used  by  his  .ser- 
vants, it  was  held  the  servant  might  recover  for  an  injury  caused  thereby, 
wilhin  such  period  of  time  after  the  promise  as  would  be  reasonable  to 
allow  for  its  performance. 

The  general  rule  is  that  if  an  employe  continues  in  the  en)ployment 
after  the  lapse  of  a  reasonable  time  for  making  the  repairs  as  promised, 
he  assumes  the  risks  of  injury  from  the  defects  as  If  no  promise  of  repair 
had  been  made. —  Davis  v.  Graham,  2  Colo.  App.  210;  29  Pac.  Rep.  1007; 
Weber  Wagon  Co.  v.  Kehl,  139  111.  G44;  29  N.  E.  Rep.  714;  Eureka  Co.  r. 
Bass,  81  Ala.  200;  8  So.  Rep.  210;  Lyttle  v.  Chicago  &  W.  M.  Ry.  Co.,  84 
Mich.  289;  47  N.  W.  Rep.  571;  Counsell  v.  Hall,  145  Mass.  4G8;  14  N.  E. 
Bep.  530. 

In  Manufacturing  Co.  v.  Morrissey  (40  Ohio  St.  148),  the  plaintiff 
called  the  attention  of  the  foreman  of  the  shop  to  the  bad  condition  of 
the  machine  on  which  he  was  working,  jointing  staves;  and  the  fonraan 
replied,  *'You  joint  a  few  staves;  get  out  some  staves  to  keep  these 
fellows  going  and  I  will  take  it  upstairs  and  have  it  flxed."  Shortly 
after  the  injury  occurred.  About  two  weeks  before  this,  plaintiff  heard 
the  foreman  say  to  one  of  the  workmen,  who  called  his  atleullon  to  the 
condition  of  the  machine,  that  he  would  get  it  fixed,  but  he  wanted  hlni 
to  keep  on  working.  Tlie  court  held  that  the  workman's  knowledge  of 
the  defect  in  the  machine  was  not,  as  a  matter  of  law,  conclusive  of  con- 
tributory negligence,  but  a  fact  to  be  considered  by  the  jury  in  dcler- 
mlnlng    whether    the    workman's   own   negligence  contributed   to   the 


496  CONTRIBUTORY   NEGLIGENCE. 

in  a  [399]  dangerous  state,  and  the  plaintiff  is  guilty  of  neg- 
ligence in  accepting  the  service,  or  in  his  acts,  as  the  case  may 

accident  by  which  he  was  injured.  See  Graham  v.  Newbury  Orrel  C. 
&  C.  Co.,  38  W.  Va.  273;  18  S.  E.  Rep.  584;  Schlitz  v.  Pabst  Brewing  Co., 
(Minn.),  59  N.  W.  Rep.  188. 

In  Conroy  v.  Vulcan  Iron  Works  (62  Mo.  35),  plaintiff  knew  the 
defect  three  days  before  the  injury,  and  reported  it  to  the  master,  who 
promised  to  repair  it,  but  "  could  not  do  everything  at  once,"  and  the 
court  held  the  question  whether  the  servant  was  guilty  of  negligence  in 
remaining  in  the  master's  service  after  knowledge  of  the  defect  and  a 
promise  by  him  to  repair  it,  was  for  the  jury.  See  Goldberg  v. 
Schrayer,  37  111.  App.  316. 

In  Hough  V.  Railway  Co.  (100  U.  S.  213),  complaint  was  made  by 
defendant's  engineer  of  a  defective  pilot,  which  he  was  promised  would 
be  remedied,  but  which  was  not,  and  the  engineer  was  thereby  injured 
and  the  court  held  that  the  subsequent  use  of  the  locomotive  "  in  the 
well  grounded  belief  that  it  will  be  put  in  a  proper  condition  within  a 
reasonable  time,  does  not  necessarily,  or  as  matter  of  law,  make  him 
guilty  of  contributory  negligence.  This  is  a  question  for  the  jury 
whether  in  relying  upon  such  promise  and  using  the  machinery  after  he 
knew  its  defective  or  insufficient  condition,  he  was  in  the  exercise  of 
due  care." 

But  when  the  employment  is  not  hazardous  and  no  great  skill  or  care  is 
required  in  the  use  of  the  machinery  or  tools  by  the  servant,  it  has  been 
held  that  the  fact  that  the  servant  continues  to  use  the  tools  after  knowl- 
edge of  their  defective  character  and  a  promise  by  the  master  to  repair 
them  is,  notwithstanding,  such  negligence  as  will  bar  a  recovery.  lu 
Marsh  v.  Chickering,  N.  Y.  Ct.  App.,  33  Alb,  Law  Jour.  262,  the  plaintiff, 
a  servant  in  defendant's  employ,  was  lighting  a  street  lamp  in  front  of  bis 
master's  premises  when  the  ladder  on  whicb  he  stood  slipped  and  he  fell 
and  was  injured.  It  had  no  hooks  or  spikes,  and  he  had  notified  the  defend- 
ant's superintendent  that  it  was  dangerous,  and  the  latter  had  promised 
to  supply  them,  but  the  plaintiff  continued  to  use  it  without  them.  It  was 
held  that  he  could  not  recover  for  the  injury. —  (See  contra  in  similar 
cases:  East  Tennessee,  etc.,  R.  Co.  v.  Duffleld,  12  Lea,  63;  47  Am.  Rep. 
319;  Guthrie  v.  Louisville,  etc.,  R.  Co.,  11  Lea,  372;  49  Am.  Rep.  286.) 

In  Marsh  u.  Chickering,  supra,  the  court  said:  "In  cases,  however, 
where  persons  are  employed  in  the  performance  of  ordinary  labor,  in 
which  no  machinery  is  used,  and  no  material  furnished,  the  use  of  which 
requires  the  exercise  of  great  skill  and  care,  it  can  scarcely  be  claimed 
that  a  defective  instrument  or  tool  furnished  by  the  master,  of  which 
the  employe  has  full  knowledge  and  comprehension,  can  be  regarded 
as  making  out  a  case  of  liability  within  the  rule  laid  down.  A  com- 
mon laborer  who  uses  agricultural  implements  while  at  work  upon  a 
farm  or  in  a  garden,  or  one  who  is  employed  in  any  service  not  requiring 


MKllU  TOISY    NEGLIGENCE MASTER    AND    REUVAXT.       497 

bo.  [400]  Now,  altliouj^h  tho  defondant  iiiiglit  liave  prt-- 
ventcd  the  damage  by  onliiiary  care,  still  ho  was  not  bound  to 

great  skill  and  judpment,  and  who  uses  the  ordinary  tools  employed  In 
such  WDrk,  to  which  he  Is  accustomed,  and  In  ntiard  lo  which  ho  ha8 
perfect  knowlodfjc,  can  hardly  be  said  to  have  a  claim  against  his  em- 
ployer for  negligence,  if  in  using  a  utensil  which  he  knows  to  be  defect- 
ive he  is  accidentally  injured.  It  does  not  rest  with  the  servant  to  nay 
that  the  master  has  superior  knowledge,  and  has  therel)y  imposed  upon 
him.  He  fully  comprehended  that  the  spade,  or  the  hoe,  or  the  ladder, 
or  the  instrument  which  he  employed  was  not  perfect;  if  he  was  thereby 
injured  It  was  by  reason  of  his  own  fault  and  negligence.  Tl>e  fact  that 
be  notitled  the  master  of  the  defect,  and  asked  for  another  iustrument, 
and  the  master  promised  to  furnish  the  same,  in  such  a  case  does  not 
render  the  master  responsible  if  an  accident  occurs.  We  have  been 
referred  to  no  adjudicated  case  which  ui)holds  the  liability  of  a  party 
under  circumstances  of  the  same  character  as  tho.se  presented  by  the 
evidence  here.  A  rule  imposing  such  liability  would  be  far-reaching, 
and  would  extend  the  principle  stated  to  many  of  the  vocations  of  life  for 
which  it  was  never  intended.  It  is  one  of  a  just  and  .salutary  cliaracter, 
designed  for  the  benefit  of  employes  engaged  in  work  where  machinery 
and  materials  are  used  of  which  they  can  have  but  little  knowledge,  and 
not  for  those  engaged  in  ordinary  labor  which  only  requires  the  use  of 
Implements  with  which  they  are  entirely  familiar.  The  plaintiff  was  of 
the  latter  class  of  laborers,  and  the  work  in  which  he  was  engaged  was 
not  of  a  character  which  would  entitle  him  to  the  protection  of  tlie  prin- 
ciple referred  to.  Even  if  it  may  be  considered  tliat  a  right  of  action 
exists  in  this  case  in  favor  of  the  plaintiff,  under  any  circumstauces,  we 
think  that  the  evidence  would  not  justify  a  recovery,  for  the  reason  that 
♦he  defendants  did  not  fail  in  furnishing  a  proper  ladder  for  the  use  of 
the  plaintiff  in  lighting  the  lamps.  The  rule  is  that  the  master  does  not 
owe  to  his  servants  the  duty  to  furnish  the  best  known  or  conceivable 
appliances;  he  is  simply  to  furnisli  such  as  are  reasonably  safe  and  suit- 
able, such  as  a  prudent  m;in  would  furnish  if  his  own  life  were  exposed 
to  the  danger  that  would  result  from  unsuitai)le  or  unsafe  appliances. — 
Burke  r.  Wetherbee,  98  N.  Y.  502;  Shear.  &  Redf.  Neg.,  §  92.  The  de- 
fendants had  procured  a  ladder  which  ordinarily  would  be  regarded  as 
safe  for  the  purpose  for  which  It  was  used.  The  plaintiff  had  used  it  for 
a  long  time  without  any  accident  or  danger,  and  on  the  Tery  night  of 
the  accident  it  had  been  placed  In  position,  and  used  some  six  times 
hucce«!sfully.  That  it  failed  at  last  for  any  reason  does  not  establish 
that  it  was  unfit  for  use.  It  might  perhaps  have  been  more  perfect  If  It  had 
had  hooks  and  spikes,  but  this  Improvement  was  not  ab.soluU-ly  essential 
to  relieve  the  defendants  from  liability.  It  was  enough  that  It  wa«  rea- 
sonably safe,  and  suitable  within  the  rule  cited,  and  under  such  circum- 
stances an  action  will  not  lie." 

:V2 


498  CONTRIBUTORY  NEGLIGENCE. 

do  SO  [401]  by  reason  of  the  consent  of  the  plaintiff  to 
the  existing  state  of  things,  and  therefore  the  plaintiflfs 
negligence  becomes  equivalent  to  "  contributory  negli- 
gence "  (r).  These  cases  are  the  converse  of  those  above 
mentioned,  where  the  defendant  has,  so  to  say,  bound  him- 
self by  his  conduct  to  save  the  plaintiff  harmless,  for  here 
the  plaintiff  by  his  conduct  agrees  to  accept  the  danger,  or 
to  save  the  defendant  harmless  (?-). 

It  is  a  matter  of  common  sense  that  a  person  who  is 
crossing  a  railway  line  upon  a  level  should  look  before  he 
crosses  (5);  but,  possibly,  if  there  were  a  statutory  duty 
upon  the  railway  to  keep  gates  or  guards,  the  defend- 
ants might  mislead  the  plaintiff  into  a  feeling  of  security, 
and  his  not  looking  when  the  gates  were  open  or  unguarded, 
might  not  be  evidence  of  negligence  {t). 

The  case  of  Wyatt  v.  Gt.  W.  Ry.  Co.  (ic)  is  a  singular 
one.     There  was  a  statutory  duty  upon  the  defendants  to 

(r)  Senior  v.  Ward,  1  Ell.  &  Ell.  385;  &  N.  W.  Ry.  Co.,  L.  R.  2  C.  P.  631 ;  36  L. 

Caswell  V.  Worth,  5  E.  &  B.  849 ;  see  ante,  J.  C.  P.  249. 
Master  and  Servant.  (0  Stapley  v.  L.  B.  &  S.  C.  Ry.  Co.,  L. 

(r)  It  la  a  question  for  the  jury  what  R.  1  Ex.  21;  35  L.  J.  Ex.  7;  see  Skelton 

amount  of  danger  the  plaintiff  under-  v.  L.  &  N.  W.  Ry.  Co.,  supra;  see  Davey 

took  to  incur,  and  the  defendant  is  not  v.  L.  &  S.   W.  Ry.  Co.,   a7ite  (guard  at 

excused  for   an  amount  of  negligence  the   gate  having  no  statutory  duty  to 

beyond  that;  see  Clayards  v.  Dethick,  12  warn). 
Q.  B.  439.  (M)  Wyatt  v.  Gt.  W.  Ry.  Co.,  6  B.  &  8. 

(«)  Stubley  v.  L.  &  N.  W.  Ry.  Co.,  L.  709.    Commented  on  in  the  recent  case 

R.  1  Ex.  20;  35  L.  J.  Ex.  3;  Skelton  v.  L.  of  Lax  v.  Darlington,  ante. 


Level  Crossings. —  It  is  the  duty  of  foot  passengers  approaching  a 
railroad  track  to  look  and  listen  before  attempting  to  cross,  and  a  failure 
to  do  so  when  one  could  have  seen  or  heard  an  approaching  train  will 
constitute  contributory  negligence. —  Gothard  ■».  Alabama,  etc.,  R.  Co.,  67 
Ala.  115;  Peoria,  etc.,  R.  Co.  v.  Clayberg,  107  111.  644;  Wheelwright  v. 
Boston,  etc.,  R.  Co.,  135;  Mass.  225;  Louisville,  etc.,  R.  Co.  v.  Goetz,  79 
Ky.  442;  Haas  v.  Grand  Rapids,  etc.,  R.  Co.,  47  Mich.  401;  Telfer  v. 
North.,  etc.,  R.  Co.,  30  N.  J.  L.  138;  Baltimore,  etc.,  R.  Co.  v.  Whitacre, 
35  Ohio  St.  627;  Railroad  Co.  v.  Houston,  95  U.  S.  697;  Schofield  v.  Chi- 
cago, etc.,  R.  Co.,  114  U.  S.  615;  Wendell  v.  N.  Y.,  etc.,  R.  Co..  91  N.  Y. 
420;  State  v.  Manchester  R.  Co.,  52  N.  H.  528;  Baughman  v.  Shenango, 
etc.,  R.  Co.,  92  Pa.  St.  335;  Union  Pac.  Ry.  Co.  v.  Adams,  33  Kan.  427;  6 
Pac.  Rep.  529;  Dowe  v.  Flint  &  P.  M.  R.  Co.  (Mich.),  60  N.  W.  Rep.  838; 
Sprow  V.  Boston  &  A.  R,  Co.  (Mass.),  39  N.  E.  Rep.  1024. 


CONTKIIUTOUV    NKGLIGENCi: KAII.WAV    CIlOS8IN(;8.       41»9 

[402]      erect   gates,   and  the  plaintiff  eoniin;;  when  there 
was  nobody  to  open  the  gates  opened  them  himself,  and 

This  rale  applies  not  only  to  foot  passengers  but  to  all  travelers  cross- 
inji  railroads. — Johnson  v.  Chicago  &  N.  W.  Ky.  Co.  (Iowa),  6'J  N.  W. 
Uep.  CG;  Smith  v.  Philadelphia  &  R.  R.  Co.,  IGO  Pa.  St.  117;  28  All.  Rep. 
<  H;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Moss,  4  Tex.  Civ.  App.  818;  2:5  8.  W. 
';ep.  475;  Tyler  v.  Old  Colony  R.  Co.,  157  Mass.  330;  32  N.  E.  Rep.  227; 
r.-xas  &  N.  0.  Ry.  Co.  v.  Brown,  2  Tex.  Civ.  App.  281;  21  S.  W.  R.-p. 
17;  30  W.  N.  C.  492;  Hansen  v.  Chicago,  etc.,  Rv.  Co.,  83  Wis.  f.31;  53 
\.  W.  Rep.  90'J;  Maguer  v.  Truesdale,  53  Minn.  430;  55  N.  W.  Rep. 
07;  Carson  v.  Federal,  etc.,  Ry.  Co.,  147  Pa.  St.  2111;  23  Atl.  Rep.  369; 
:.<  W.  N.  C.  402;  Ward  v.  Rochester  Electric  Ry.  Co.,  63  Hun,  624;  17 
N.  y.  S.  Rep.  427;  Ehrisraan  v.  East  Ilarrisburg  City  Pass.  Ry.  Co., 
IJO  Pa.  St.  180;  24  Atl.  Rep.  590;  30  W.  N.  C.  373;  Thornton  v. 
Cleveland,  etc.,  Ry.  Co.,  131  Ind.  492;  31  N.  E.  Rep.  185;  Grostlck  v. 
Detroit,  etc.,  R.  Co.,  90  Mich.  594;  51  N.  W.  Rep.  667;  llerllsch  v. 
Louisville,  etc.,  R.  Co.,  44  La.  Ann.  280;  10  So.  Rep.  628;  Chicago,  R, 
I.  &  P.  Ry.  Co.  V.  Fitzslramons,  40  111.  App.  360;  Toledo,  St.  L.  &.  K. 
C.  R.  Co.  u.Cline,  135  111.  41;  25  N.  E.  Rep.  846;  Louisville,  N.  A.  &  C. 
Ky.  Co.  V.  Storamel,  126  Ind.  35;  25  N.  E.  Rep.  863;  Union  R.  Co.  v. 
State,  72  Md.  153;  19  Atl.  Rep.  449 ;  Cincinnati,  I.,  St.  L.  &  C.  Ry.  Co.  r. 
Howard,  124  Ind.  280;  24  N.  E.  Rep.  892;  Cones  i'.  Cincinnati,  etc.,  Ry. 
Co.,  114  Ind.  328;  16  N.  E.  Rep.  638;  Pennsylvania  R.  Co.  v.  Peters,  116 
Pa.  St.  206;  9  Atl.  Rep.  317;  Harris  v.  Minneapolis  &  St.  L.  R.  Co.,  37 
Minn.  47;  33  N.  W.  Rep.  12. 

Failure  to  so  look  and  listen  is,  however,  not  necessarily  negligence 
but  is  generally  a  question  of  fact. —  Ilendrickson  v.  Great  Northern  Ry. 
Co.,  49  Minn.  245;  51  N.  W.  Rep.  1044;  Cahill  r.  Cincinnati,  etc.,  Ry.  Co., 
82  Ky.  345;  18  S.  W.  Rep.  2;  Terre  Haute  &  P.  R.  Co.  r.  Barr,  31  111. 
App.  57;  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Wilson,  133  111.  55;  24  N.  E. 
Eep.  655;  Terre  Haute  &.  I.  R.  Co.u.  Voelker,  129  111.  540;  22  N.  E.  Rep. 
20;  Northern  Pac.  R.  Co.  v.  Holmes,  3  Wash.  T.  543;  18  Pac.  Rep.  76; 
International  &  G.  N.  R.  Co.  v.  Neff,  87  Tex.  303;  28  S.  W.  Rep.  283. 

It  has  been  held  that  one  driving  a  team  should  stop  before  passing 
over  a  railroad  crossing  (Henze  v.  St.  Louis,  etc.,  R.  Co.,  71  Mo,  636; 
Penn.  Canal  Co.  v.  Bently,  66  Pa.  St.  30;  Wilds  v.  Hudson,  etc.,  R.  Co., 
29  N.  Y.  315;  Turner  v.  The  Hannibal,  etc.,  R.  Co.,  74  Mo.  602;  Llltaur 
V.  Narragansett  Pier  Co.,  61  Fed.  Rep.  691;  Martin  r.  New  York,  etc.",  R. 
Co.,  66  Hun,  636;  21  N.  Y.  S.  Rep.  919;  Kelly  r.  Chicago  &  A.  R,  Co.,  88 
Mo.  534.  Contra,  Leavenworth,  etc.,  R.  Co.  r.  Rice,  10  Kan.  426;  Davis 
V.  New  York,  etc.,  R.  Co.,  47  N.  Y.  400)  ;  and  one  court  has  held  that  a 
person  driving  a  carriage  or  team  should  get  out  and  look  up  and  down 
the  track  before  crossing  (Penn.,  etc.,  R.  Co.  v.  B«ale,  73  Pa.  St.  504; 
Ellis  V.  Lake  Shore  &  M.  S.  R.  Co.,  138  Pa.  St.  606;  21  All.  Rep.  140;  27 
W.  N.  C.  145);  but  this  is  not  the  law  generally  (P.  C.  &  St.  L.  R.  Co.  c. 


500  CONTKIBUTOUY   NEGLIGENCE. 

they  [403]  closed  upon  him  and  injured  him.  The  ma- 
jority of  the  Court  (Cockburn,  C.  J.,  Crompton  and  Shee, 

Wright,  80  Ind.  236;  Dolanu.  Delaware,  etc.,  R.  Co.,  71  N.  Y.  285;  DnfiEy 
V.  Chicago,  etc.,  R.  Co.,  32  Wis.  269;  Kelsey  v.  Staten  Island  R.  T.  Co., 
78  Hun,  208;  28  N.  Y.  S.  Rep.  974;  Hinckle  v.  Railroad  Co.,  109  N.  C. 
472;  13  S.  E.  Rep.  884;  Alexander  v.  Richmond  &  D.  R.  Co.,  112  N.  C. 
720;  16  S.  E.  Rep.  896)  ;  and  one  is  not  generally,  as  a  matter  of  law, 
required  to  stop  before  crossing  a  railroad  track  when  driving  (Weber 
©.New  York  Cent.,  etc.,  R.  Co.,  58  N.  Y.  451;  Spencer  v.  Illinois  Cent.  R. 
Co.,  29  la.  55;  Kellogg  u.  Railroad  Co.,  79  N.  Y.  72;  Galveston,  H.  &  S. 
A.  Ry.  Co.  V.  Duelm  (Tex.  Civ.  App),  24  S.  W.  Rep.  334;  Illinois  Cent. 
R.  Co.  V.  Fishell,  32  111.  App.  41;  Chicago  &  I.  R.  Co.  v.  Lane,  130  111. 
116;  22  N.  E.  Rep,  513;  Nosier  t;.  Chicago,  etc.,  Ry.  Co.,  73  la.  268;  34 
N.  W.  Rep.  850;  Donohue  v.  St.  Louis,  etc.,  Ry.  Co.,  91  Mo.  357)  ;  nor  is 
he  as  a  matter  of  law  required  to  lower  the  top  of  his  carriage. —  Stackas 
V.  New  York  Central,  etc.,  R.  Co.,  79  N.  Y.  464.  But  he  is  not  relieved 
of  the  duty  of  looking  out  by  the  fact  that  the  top  of  his  carriage  is  up.— 
New  York,  P.  &  N.  R.  Co.  v.  Kellam,  83  Va.  851;  3  S.  E.  Rep.  703.  In 
Delaware,  L.  &  W.  R.  Co.  v.  Converse  (129  U.  S.  469;  11  S.  Ct.  Rep. 
669),  it  was  held,  that  the  duty  of  plaintiff  was,  if  his  view  of  the  track 
was  obstructed,  to  have  stood  up  in  his  carriage  if  by  so  doing  he  coold 
have  seen  over  the  obstructions. 

"  But  without  going  to  the  extent  of  many  of  the  authorities,"  said 
the  court  in  Maryland  Central  R.  Co.  v.  Neubeur,  62  Md.  391,  "  and  laying 
it  down  as  an  unqualified  rule  applicable  to  all  cases  that  a  traveler  must 
actually  stop  before  attempting  to  cross  the  rails  to  look  and  listen,  we 
hold,  with  the  concurrence  of  all  the  authorities,  that  he  must  at  least 
exercise  a  reasonable  precaution  to  look  and  listen  before  venturing  over 
the  rails,  and  his  failure  to  observe  that  precaution  is  negligence  per  se; 
if  he  attempts  to  drive  a  vehicle  across  the  tracks  in  view  of  an 
approaching  train,  his  conduct  is  worse  than  negligent,  it  is  simply 
reckless."— And  see  Grows  v,  Maine  Central  R.  Co.,  67  Me.  100;  Chi- 
cago, etc.,  R.  Co.  V.  Houston,  95  U.  S.  697;  Chicago,  etc.,  R.  Co.  v.  Bell, 
80  111.  102;  Langhoff  v.  Milwaukee,  etc.,  R.  Co.,  23  Wis.  43;  Salter  c. 
Utica,  etc.,  R.  Co.,  75  N.  Y.  273;  Mynning  v.  Detroit,  etc.,  R.  Co.,  S.  C. 
Mich.,  26  N.  W.  Rep.  514;  Union  Pac.  Ry.  Co.  v.  Hutchinson,  39  Kan. 
485;  18  Pac.  Rep.  705;  IQ  Id.  312;  Chicago,  C,  C.  &  St.  L.  Ry.  Co.  v. 
Arbaugh,  47  111.  App,  360;  Myers  v.  Baltimore  &  O.  R.  Co.,  150  Pa.  St. 
38G;  24  Atl.  Rep.  747;  30  W.  N.  C.  492;  State  v.  Baltimore  &  O.  R.  Co., 
73  Md.  374;  21  Atl.  Rep.  62;  Mehegan  v.  New  York,  etc.,  R.  Co.,  125  N. 
Y.  768;  26  N.  E.  Rep.  936;  International  &  G.  N.  Ry.  Co.  v.  Kuehn,  70 
Tex.  582;  8  S.  W.  Rep.  484;  Allen  v.  Pennsylvania  Ry.  Co.  (Pa.),  12  Atl. 
Rep.  493;  Kelly  v.  Pennsylvania  R.  Co.  (Pa.),  8  Atl.  Rep.  856;  Delaware, 
L.  &  W.  Ry.  Co.  V.  Heffernan  (N.  J.),  30  Atl.  Rep.  578.  So  where  a 
pedestrian  undertakes  to  cross  a  railroad  track,  when  he  sees  a  train 


CONTRIBLTOUY    NEGLIGKXCK U.MLWAY    CKOSSINOS.       501 

JJ.)  held  that      [404]      the   puhlit-  vv^hl  of  way   wuh  ob- 
structed l)y  statute,  and  the  plaintiff  had  no  rifrht  to  remove 


approaching.  — Pittsburgh,  C,  C.  &  St.  L.  Ry.  Co.  r.  Bennett,  9  Ind.  App. 

92;  35  N.  E.  Kep.  1033;  Craddock  r.  Louisville  &  N.  U.  Co.  (Ky.),  IC  8. 
W.  Rep.  125;  Baltimore  &  O.  R.  Co.  v.  Mah,  GO  Md.  53. 

One  croflslng  a  railroad  track  must  exercise  the  care  of  a  person  of 
ordinary  prudence. —  Burke  v.  New  York,  etc.,  R.  Co.,  73  Ilun,  32;  26  N. 
Y.  S.  Rep.  lOO'J;  Gratiot  w.  Missouri  Pac.  R.  Co.,  116  Mo.  450;  21  S.  W. 
Rep.  1094;  Olseu  t?.  Oregon,  etc.,  Ry.  Co.,  U  Utah,  129;  33  Pac.  Rep.  C23; 
Easley  v.  Missouri  Pac.  Ry.  Co.,  113  Mo.  236;  20  S.  W.  R<p.  1073; 
Koehler  r.  Rochester,  etc.,  R.  Co.,  CO  Ilun,  566;  21  N.  Y.  S.  Rep.  844; 
Hager  v.  Southern  Pac.  Co.,  98  Cal.  309;  33  Pac.  Rep.  119;  Chicago,  K. 
&  W.  R.  Co.  V.  Fl.sher,  49  Kan.  460;  30  Pac.  Rep.  462;  GalvcMon,  II.  &  8. 
A.  Ry.  Co.,  V.  Matula,  79  Tex.  577;  19  S.  W.  Rep.  376,  alllrmiDg  79  Tex. 
581;  15  S.  W.  Rep.  573;  Eddy  tJ.  Powell,  49  Fed.  Itep.  814;  4  U.  8.  App. 
259;  1  C.  C.  A.  448;  International  &  G.  N.  Ry.  Co.  v.  Dyer,  70  Tex.  166; 
13  8.  W.  Rep.  377;  O'Connor  v.  Missouri  Pac.  Ry.  Co.,  94  Mo.  150;  7  S. 
W.  Rep.  106;  Clark  v.  Missouri  Pac.  Ry.  Co.,  35  Kan.  350;  11  Pac.  Rep. 
134;  Wichita  &  W.  R.  Co.  v.  Davis,  37  Kan.  743;  16  Pac.  Rep.  78;  -Mis- 
souri Pac.  Ry.  Co.  v.  Lee,  70  Tex.  496;  7  S.  W.  Rep.  857;  Gulf,  C.  &  S. 
F.  Ry.  Co.  V.  Scott  (Tex.  Civ.  App.),  27  S.  W.  Rep.  827;  Tobias  r.  Michi- 
gan Cent.  R.  Co.  (Mich.),  61  N.  W.  Rep.  514;  Sheehan  v.  Philadelphia  &. 
R.  R.  Co.,  166  Pa.  St.  354;  31  Atl.  Rep.  120;  Louievlllo  &  N.  R.  Co.  v. 
Krey  (Ky.),  29  S.  W.  Rep.  869. 

It  is  held  in  some  cases  that  the  fact  that  a  person  attempting  to  cross 
a  railroad  track  does  not  at  the  instant  of  stepping  on  It  look  to  ascertain 
whether  a  train  is  approaching  is  not  conclusive  of  a  want  of  due  care 
on  his  part.  —  Chaffee  v.  Boston,  etc.,  R.  Co.,  104  .Mass.  108;  Pluramer  o. 
Eastern  R.  Co.,  73  Me.  591;  Kellogg  v.  liailroad  Co.,  79  N.  Y.  72.  But 
under  different  circumstances  other  cases  have  been  decided  to  the  con- 
trary.—Moore  V.  New  York,  etc.,  R.  Co.,  62  Hun,  621  ;  17  N.  Y.  S.  Rep. 
205;  Derk  v.  Northern  Cent.  Ry.  Co.,  104  Pa.  St.  243;  30  Atl.  liep.  231. 

An  omission  to  ring  a  bell  or  sound  a  whistle  by  the  railroad  company 
will  not  excuse  a  traveler  attempting  to  cross  the  track  from  looking  or 
listening  for  an  approaching  train.  —  The  Maryland  Central  R.  Co.  r. 
Neobeur,  62  Md.  391;  Williams  v.  Chicago,  etc.,  R.  Co.,  164  Wis.  1;  24 
N.  W.  Rep.  422;  Bowers  v.  Chicago,  etc.,  R.  Co.,  61  Wis.  467;  Ormsbeo 
V.  Boston,  etc.,  R.  Corp.  14  R.  I.  102;  Holland  v.  Chicago,  etc.,  R.  Co., 
.  18  Fed.  Rep.  243;  Krauss  v.  Wallkill  Val.  R.  Co.,  69  Hun,  482;  23  N.  Y. 
S.  Rep.  432;  Maxey  v.  Missouri  Pac.  Ry.  Co.,  113  .Mo.  1;  20  S.  W.  Rep. 
«54;  lL)rn  v.  Baltimore  &  O.  R.  Co.,  54  Fed.  Rep.  301  ;  Mixsourl  Pac.  Ry. 
Co.  V.  Peay  (Texas),  20  S.  W.  Rep.  57;  Dlauhl  v.  St.  L«)uls,elc.,  Ry.  Co., 
105  Mo.  045;  16  S.  W.  Rep.  281;  Bejel  r.  Newport  .News  &  M.  V.  R.  Co., 
;'4  W.  Va,  538;  12  S.  E.  R.p.  532;  Grimth  r.  Baltimore  &.  O.  R.  Co.,  44 
Fed.  Rep.  574;  Leak  v.  Georgia  Pac.  Ry.  Co.,  90  Ala.  101 ;  8  So.  Rop.  246; 


502  CONTRIBUTORY   NEGLIGENCE. 

the  obstruction;  but  [405]  Blackburn,  J.,  dissenting  in 
a  very  clear  judgment,  said  that  if  the  plaintiff  had  not 

Brown  v.  Texas  &  P.  Ry.  Co.,  32  La.  Ann.  350;  7  So.  Rep.  682;  Galves- 
ton, H.  &  S.  A.  R.  Co.  V.  Kutac,  72  Tex.  643;  11  S.  W.  Rep.  127;  Cnllen 
V.  Delaware  &  H.  C.  Co.,  113  N.  Y.  667;  21  N.  E.  Rep.  716;  Atchison,  T. 
&  S.  F.  R.  Co.  V.  Hague,  54  Kan.  284;  38  Pac.  Rep.  257;  Johnson  v. 
Chesapeake  &  O.  R.  Co.  (Va.),  21  S.  E.  Rep.  288. 

Though  the  train  was  running  at  a  dangerous  and  unlawful  rate  of 
speed.  —  Schofleld  v.  Chicago,  etc.,  Ry.  Co.,  114  U.  S.  615;  Hollands. 
Chicago,  etc.,  R.  Co.,  18  Fed.  Rep.  243;  Cincinnati,  etc.,  R.  Co.,  v. 
Butler,  103  Ind.  31;  2  N.  E.  Rep.  138;  Texas  &  P.  Ry.  Co.  v.  Fuller,  5 
Tex.  Civ.  App.  660;  24  S.  W.  Rep.  1090;  Texas  &  N.  O.  Ry.  Co.  v.  Brown, 
2  Tex.  Civ.  App.  281;  21  S.  W.  Rep.  424;  Korrady  v.  Lake  Shore  &  M. 
S.  Ry.  Co.,  131  Ind.  261;  29  N.  E.  Rep.  1069;  Sala  v.  Chicago,  etc.,  Ry. 
Co.,  85  la.  678;  52  N.  W.  Rep.  664;  Ivey  v.  East  Tenn.,  etc.,  Ry.  Co.,  88 
Ga.  71;  13  S.  E.  Rep.  947;  Yancy  v.  Wabash,  etc.,  Ry.  Co.,  93  Mo.  433; 
6  S.  W.  Rep.  272;  Kwiotkowski  v.  Chicago  &  G.  T.  Ry.  Co.,  70  Mich.  549; 
38  N.  W.  Rep.  463.  But  see  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Creelarid  (Tex. 
Civ.  App.),  26  S.  W.  Rep.  153. 

From  these  cases  may  be  deduced  the  general  statement  of  law  that 
for  the  defendant's  negligence  he  is  not  responsible  where  the  plaintiff's 
negligence  was  the  immediate  cause  of  the  injury  to  himself.  —  Hogan  v. 
Tyler  (Virginia),  17  S.  E.  Rep.  723;  Marks  v.  Petersburg  R.  Co.,  88  Va. 
1;  13  S.  E.  Rep.  299;  Evans  &  Howard  F.  B.  Co.  v.  St.  Louis,  etc.,  Ry. 
Co.,  17  Mo.  App.  624;  Lloyd  v.  St.  Louis,  etc.,  Ry.  Co.  (Mo.),  29  S.  W. 
Rep.  153. 

But  if  he  could  not  have  seen  or  heard  the  train  it  is  not  material  that 
he  did  not  look  or  listen. —  Dyer  v.  Erie  R.  Co.,  71  N.  Y.  228;  Chicago, 
etc.,  R.  Co.  V.  Lee,  87  HI.  454 ;  Davis  v.  New  York,  etc.,  R.  Co.,  47  N. 
Y.  400. 

It  is  no  excuse,  however,  that  he  was  deaf  and  could  not  hear. — Zim- 
merman V.  Hannibal,  etc.,  R.  Co.,  71  Mo.  476;  New  Jersey  Trans.  Co.  v. 
West,  32  N.  J.  L.  91;  Lake  Shore,  etc.,  R.  Co.  v.  Miller,  25  Mich.  279; 
Illinois,  etc.,  R.  Co.  v.  Buckner,  28  111.  299;  Laicher  u.  New  Orleans,  etc., 
R.  Co.,  28  La.  Ann.  320;  Cleveland,  etc.,  R.  Co.  v.  Terry,  8  Ohio  St.  570; 
Morris,  etc.,  R.  Co.  v.  Haslan,  38  N.  J.  L.  147;  Purl  v.  St.  Louis,  etc., 
Ry.  Co.,  72  Mo.  168;  Artusy  v.  Missouri  Pac.  Ry.  Co.,  73  Tex.  191;  11 
S.  W.  Rep.  177;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Ryon,  80  Tex.  59;  15 
S.  W.  Rep.  588;  Louisville  &  N.  R.  Co.  v.  Black,  89  Ala.  313;  8  So.  Rep. 
246;  Schexnaydre  ■».  Texas  &  P.  Ry.  Co.,  46  La.  Ann.  248;  14  So.  Rep. 
513;  Mobile  &  O.  R.  Co.  v.  Stroud,  64  Miss.  784. 

Such  infirmity  imposes  on  the  individual  the  exercise  of  greater  care  in 
the  use  of  the  eyesight. —  Central,  etc.,  R.  Co.  v.  Feller,  84  Pa.  St.  226; 
Cleveland,  etc.,  R.  Co.  v.  Terry,  8  Ohio  St  570;  Morris,  etc.,  R.  Co.  v. 
Haslan,  38  N.  J.  L.  147;  McKinney  v.  Chicago  &  N.  W.  Ry.  Co.  (Wis.),  S8 


CONTUim  roUY    NKCLUajNCi:  —  kailway  cuossinos.      /iOS 

. ontiibuted  to  the  injury  by  any  way  of  ordinary  c;irr,  ho 
couhl  recover,  as  he  had  a  right  to  go  along  the  road  Hub- 
ject  to  the  proper  and  legal  obstruction  by  the  defendants. 


N.  W.  Rep.  38G;  69  N.  W.  Rep.  499;  Schulte  v.  New  Orleans,  etc.,  R. 
Co.,  44  La.  Ann.  609;  10  So.  Rep.  811;  Thomas  v.  Chicago  &  G.  T.  Hy. 
Co.,  86  Mich.  49tJ;  49  N.  W.  Rep.  547. 

Or  blind.— See  Winn  v.  Lowell,  1  Allen,  177;  City  of  Centralla  v. 
Krouse,  (A  111.  19;  Davenport  v.  Ruckman,  37  N.  Y.  MS;  Sleeper  r.  San- 
down,  52  N.  II.  244;   Maloy  v.  Wabash,  etc.,  Ry.  Co.,  84  Mo.  270. 

Nor  is  It  an  excuse  that  plaintiff  was  Intoxicated. —  Southwestern, 
etc.,  R.  Co.  V.  Ilankerson,  Gl  Ga.  114;  Little  Rock,  etc.,  R.  Co.  v.  Park- 
hurst,  36  Ark.  371;  Yarnell  v.  St.  Louis,  etc.,  R.  Co.,  75  Mo,  575;  Hous- 
ton, etc.,  R.  Co.  V.  Sympkins,  54  Tex.  615;  Fulton  Co.  N.  G.  Ry.  Co.  r. 
Butler,  4S  111.  App.  301 ;  McDonald  v.  Chicago,  etc.,  Ry.  Co.,  75  Wis.  121 ; 
43  N.  W.  Rep.  744;  Anderson  v.  Chica<;o,  etc.,  Ry.  Co.  (Wis.),  5H  N.  W. 
Rep.  79;  Johnson  v.  Louisville  &  N.  R.  Co.  (Alabaraii),  16  So.  Rep.  75; 
Hershey  v.  Tp.  of  Millcreek  (Pa.),  9  Atl.  Rep.  452;  Loflus  r.  Town  of 
North  Adams,  ICO  Mass.  161;  35  N.  E.  Rep.  674;  Denver  Tramway  Co. 
r.  Reed,  4  Colo.  App.  500;  35  Pac.  Rep.  269;  Munley  r.  Hull  (Pa.),  3 
Lack.  Jur.  277;  Bradwell  v.  Pittsburgh  &  W.  E.  Pass.  Ry.  Co.,  168  Pa.  St. 
105;  25  Atl.  Rep.  623. 

But  whether  intoxication  is  such  contributory  negligence  as  will  bar  a 
recovery  is  usually  a  question  for  the  jury. —  Illinois,  etc.,  R.  Co.  v. 
Cragin,  71  111.  177;  Toledo,  etc.,  R.  Co.  r.  Riley,  47  111.  514;  Baltimore, 
etc.,  R.  Co.  V.  Boteler,  38  Md.  568;  Barker  r.  Savage,  45  N.  Y.  191. 

In  Georgia  it  is  a  complete  defense  (Southwestern,  etc.,  R.  Co.  v. 
Hankcrson,  61  Ga.  114);  unless  the  intoxication  did  not  immediately 
contribute  to  the  injury. —  Central  R.  &  B.  Co.  p.  Phlnazee,  93  Ga.  488; 
21  S.  E.  Rep.  66. 

It  is  otherwise  with  respect  to  children  of  tender  years  and  the  old  or 
Infirm,  for  they  are  expected  to  exercise  only  that  degree  of  care  due 
from  those  of  their  age  or  condition. —  Chicago,  etc.,  R.  Co.  r.  Murray, 
71  111.  601;  Haas  r.  Chicago,  etc.,  R.  Co.,  41  Wis.  44;  Thurber  v.  H.irU'ui 
etc.,  R.  Co.,  60  N.  Y.  326;  Isabell  v.  Hannibal,  etc.,  R.  Co.,  60  Mo.  475; 
Elkins  V.  Boston,  etc.,  R.  Co.,  115  Mass.  190;  Paducah,  etc.,  R.  Co.  r. 
Hoehl,  12  Bush,  41 ;  Philadelphia,  etc.,  R.  Co.  v.  Spearen,  47  Pa.  St.  300; 
O'Mara  v.  Hudson,  38  N.  Y.  445;  Baker  v.  Flint  &  P.  .M.  R.  Co.,  68  .Mich. 
90;  86  N.  W.  Rep.  836;  Central  Trust  Co.  v.  Wabash,  etc.,  Ry.  Co.,  31 
Fed.  Rep.  246;  San  Antonio  &  A.  P.  Ry.  Co.  v.  Vaughn,  5  Tex.  Civ.  App. 
196;  23  S.  W.  Rep.  745. 

"  The  old,  the  lame  and  the  infirm,"  said  the  court,  In  O'.Mara  r.  Hud- 
son, supra,  "  are  entitled  to  the  use  of  the  street,  and  more  care  must  bo 
exercised  toward  them  by  engineers  than  towards  those  who  have  better 
powers  of  motion.     The  young  are  entitled  to  the  same  rights,  and  can 


504  CONTRIBUTORY  NEGLIGENCE. 

It  has  been  decided  several  times,  and  must  be  taken  as 
the  law,  that  not  only  will  the  plaintiff  be  disentitled  to 

not  be  expected  to  exercise  as  good  foresight  and  vigilance  as  those  of 
maturer  years." 

One  physically  deficient  is  required  to  exercise  care  in  proportion  to 
his  defect.—  Simms  v.  South  Carolina  Ry.  Co.,  27  S.  C.  268;  3  S.  E.  Rep. 
301.  See  Baltimore  Traction  Co.  v.  Wallace,  77  Md.  435;  26  Atl.  Rep. 
618. 

A  plaintiff  whose  mental  abstraction  contributed  to  his  injury,  cannot 
recover  therefor.—  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  York,  74  Tex.  364;  12  S. 
W.  Rep.  68;  Trousclair  v.  Pacific  Coast  S.  S.  Co.  80  Cal.  521;  22  Pac. 
Rep.  258;  Wilds  v.  Brunswick  &  W.  R.  Co.,  82  Ga.  667;  9  S.  E.  Rep.  595. 

The  duty  of  giving  signals  on  approaching  a  crossing  is  generally  im- 
posed by  statute  upon  railroad  companies,  and  they  are  liable  for  injuries 
caused  by  such  omission.  —  Memphis,  etc.,  R.  Co.  v.  Copeland,  61  Ala. 
376;  Peoria,  etc.,  R.  Co.  v.  Siltman,  88  111.  529;  Pollock  v.  Eastern  R. 
Co.,  124  Mass.  158;  Ransom  v.  Chicago,  etc.,  Ry.  Co.,  162  Wis.  178;  22 
N.  W.  Rep.  147  (team  frightened  on  highway  parallel  with  track). 

But  proof  of  the  violation  of  the  statute  is  not  sufiicient  to  establish 
the  company's  liability. —  Holman  v.  Chicago,  etc.,  R.  Co.,  62  Mo.  562; 
McGrath  v.  New  York  Central,  etc.,  R.  Co.,  63  N.  Y.  522. 

There  must  be  proof  that  the  injury  resulted  from  the  omission. — 
Briggs  V.  New  York  Central,  etc.,  R.  Co.,  72  N.  Y.  26;  Chicago,  etc.,  B. 
Co,  V.  McLean,  40  111.  218. 

And  a  failure  on  the  part  of  the  company  to  comply  with  the  statutory 
regulation  does  not  render  it  liable  unless  such  failure  contributed  to  the 
injury.— Field  v.  Chicago,  etc.,  R.  Co.,  14  Fed.  Rep.  332;  Ransom  o. 
Chicago,  etc.,  R.  Co.,  22  N.  W.  Rep.  147;  Cincinnati,  etc.,  R.  Co.  v.  But- 
ler, 2  N.  E.  Rep.  138;  Knight  v.  New  York,  etc.,  R.  Co.,  99  N.  Y.  25;  1 
N.  E.  Rep.  108. 

But  where  a  railroad  company  neglects  to  perform  a  statutory  duty, 
and  injury  results  therefrom,  the  corporation  will  be  liable,  although  the 
negligence  of  the  injured  person  contributed  to  the  accident,  provided 
his  negligence  was  induced  or  brought  about  by  the  negligence  of  the 
company. —  Kanowski  v.  Grand  Trunk  Ry.  Co.  of  Canada,  57  Mich.  525; 
24  N.  W.  Rep.  801 ;  32  Alb.  Jour.  509. 

In  the  absence  of  statutory  requirement  there  is  no  legal  obligation  on 
a  railroad  company  to  keep  at  the  crossings  of  the  public  roads  flagmen 
to  give  warnings  to  travelers  on  such  roads  of  the  passing  of  trains.  — 
States?.  Philadelphia,  etc.,  R.  Co.,  47  Md.  76;  Welsch  v.  the  Hannibal, 
etc.,  R.  Co.,  72  Mo.  451;  Sellars  v.  Richmond  &  D.  R.  Co.,  94  N.  C.  654. 
But  where  the  crossing  is  exceptionally  dangerous,  such  objection  may 
exist.  —Hubbard  v.  Boston  &  A.  R.  Co.,  162  Mass.  132;  38  N.  E.  Rep. 
366. 

But  when  flagmen  are  employed  by  statute  to  give  warnings  at  cross- 


CONTRIBUTOItV    NEOLIOEXCE  —  UAILWAY   CR088IN08.       505 

recover,  if  he  has  been  guilty  of  contributory  uegligcnco 
himself,  but  also  if  those  with  whom  ho  is  idcnlitit-d  huvo 

Ings  to  travelers,  tlie  corapatay  will  be  liable  lor  an  injury  occasioned  by 
an  omission  of  a  flagman  to  piTform  this  duly. —  Delaware,  etc.,  H.  Co. 
r.  Toflfey,  38  N.  J.  L.  5'.'5;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Cloagh,  184  111. 
680;  25  N.  E.  Rep.  CG4 ;  29  N.  E.  Rep.  184. 

The  withdrawal  of  a  llaj^man  from  a  highway  crossing  where  he  Is  usu- 
ally kept  has  been  held  negligence. —  Burns  v.  North  Chicago  Kolllng 
Mill  Co.,  65  Wis.  312;  27  N.  W.  Rep.  43. 

But  one  in  the  habit  of  almost  dally  passing  over  a  railroad  crossing, 
who  was  Injured  there  nearly  two  years  after  the  discontinuance  of  the 
use  of  an  alarm  bell,  cannot  Insist  that  the  failure  to  remove  the  bell 
was  negligence  on  the  part  of  the  company. —  WellenhofiEer  v.  New  York, 
etc.,  R.  Co.,  G(J  Hun,  C34;  21  N.  Y.  S.  Rep.  806. 

Where  one  attempted  to  cross  a  track  when  invited  to  do  so  l)y  a  flag- 
man, though  in  view  of  an  approaching  train,  it  was  held  that  he  might 
recover  for  injuries  so  received.  —  Sweeny  v.  Old  Colony  R.  Co.,  10 
Allen,  3IJ8;  Chaffee  r.  Boston,  etc.,  R.  Co.,  104  Mass.  108;  Ilenning  v. 
CaMwell,  G3  Ilun.  635;   18  N.  Y.  S.  Rep.  339. 

And  where  a  traveler  was  crossing  a  railroad  track  in  a  wagon  In  a 
place  of  extra  danger,  and  the  flagman  did  not  notify  him  of  the  coming 
of  a  train  uutil  after  he  had  begun  to  cross,  and  the  traveler  then  misun- 
derstood the  warning,  and  went  forward  when  he  ought  to  have  retreated, 
it  was  held  that  such  misunderstanding  should  not,  under  the  circum- 
stances, be  imputed  to  him  as  negligence. —  New  York,  etc.,  R.  Co.  v. 
Randel,  47  N.  J.  L.  144.  See  Robbins  v.  Fitchburg  R.  Co.,  161  Mass. 
145;  36  N.  E.  Rep.  752. 

Where  a  crossing  is  particularly  dangerous  and  requires  extraordinary 
effort  to  ascertain  whether  it  is  safe  to  attempt  to  cross,  one  familiar  with 
the  locality  and  the  danger  surrounding  it,  must  use  care  proportioned  to 
the  probable  danger. —  Cincinnati,  etc.,  R.  Co.  v.  Butler,  103  Ind.  31;  2 
N.  E.  Rep.  138. 

Where  the  view  of  the  track  is  obstructed. —  Ariz  v.  Chicago,  etc.,  R. 
Co.,  44  la.  284;  Dimick  v.  Chicago,  etc.,  R.  Co.,  80  111.  338;  Cordell  r.  N. 
Y.,  etc.,  R.  Co.,  70  N.  Y.  119;  Indianapolis,  etc.,  R.  Co.  v.  Smith,  78  III. 
112;  Pennsylvania  R.  Co.  v.  Matthews,  36  N.  J.  L.  531;  Craig  r.  N.  Y., 
etc.,  R.  Co.,  118  Mass.  431;  McCrory  c.  Chicago,  etc.,  Ry.  Co.,  .TI  Fed. 
Rep.  531;  Houghton  v.  Chicago  &  G.  T.  Ry.  Co.,  99  Mich.  308;  58  N.  Y. 
Rep.  314;  Shufelt  v.  YUnt  &  P.  M.  R.  Co.,  96  Mich.  327;  65  N.  W.  Rep. 
1013;  Chicago,  K.  &  W.  R.  Co.  ».  Fisher,  49  Kan.  460;  30  Pac.  Rep,  462; 
Clark  V.  Northern  Pac.  R.  Co.,  47  Minn.  r.80;  50  N.  W.  Rep.  365;  Ileaney 
t>.  Long  Island  R.  Co.,  112  N.  Y.  122;  19  N.  E.  Rep.  422;  Atchison,  T.  & 
S.  F.  R.  Co.  V.  Townsend,  39  Kan.  115;  17  Pac.  Rep.  804;  Marty  r 
Chicago,  etc.,  Ry.  Co.,  38  Minn.  108;  35  N.  W.  Rt'p.  670;  McCrory  r. 
Chicago,  etc.,  Ry.  Co.,  31  Fed.  Rep.  631;  Seeftld  v.  Chicago,  etc.,  Ry. 


506  CONTRIBUTORY   NEGLIGENCE. 

been  guilty  of  contributory  negligence  (x).  The  above  rule 
[406]  has  been  disapproved  of  in  Scotland  (see  Campbell 
on  Negligence,  2iid  ed.,  p.  185),  and  in  America  the  rule 
is  that  the  plaintiff  is  only  defeated  by  showing  that  the 
person  whose  negligence  is  sought  to  be  imputed  to  the 
plaintiff  is  under  his  direction,  or  that  he  controlled  the 
plaintiff's  personal  conduct  (see  Shearman  on  Negligence, 
para.  46).  In  one  case  in  America  it  was  held  that  a  wife 
driven  by  her  husband  was  not  identified  with  him  unless 


(x)  Thorogood  v.  Bryan,  8  C.  B.  115  sadumkeag  Log-Driving  Co.,  85  Me.  221; 

(plaintiff   a  passenger  In  an  omnibus,  27  Atl.  Rep.  109;  Dollard  v.  Roberts,  130 

identified  with  owner);   see  The   Ber-  N.  Y.  269;  29  N.  E.  Rep.  104;  Abbitt  v. 

nina,  65  Law  Jour.  Rep.,  P.  D.  &  A.  21;  Lake  Erie  &  W.  R.  Co.  (Ind.),  40  N.  E. 

Cattlln  V.  Hills,  (6.  (plaintiff  passenger  Rep.  40;  Poor  v.  Sears,  154  Mass.  639;  28 

on  a  steamer) ;  Armstrong  t'.  L.  &  Y.  Ry.  N.  E.  Rep.  1046;  White  Sewing  Mach. 

Co.,L.  R.  lOEx.  47;  44  L.  J.  Ex.89  (plain-  Co.  v.  Rlchter,.2  Ind.  App.  331;  28  N.  E. 

tiff,  an  Inspector,  traveling  In  train  by  Rep.  446;  Kinraouth  v.  McDougall,  19  N. 

pass  run  into  by  train  of  another  com-  Y.  S.  Rep.  771;  Shaw  v.  Craft,  37  Fed. 

pany);  Otis  v.  Janesvllle,  47  ^Vls.  422;  Rep.  317;  Davis  v.  Guarnleri,  45  Ohio  St. 

—  [Georgia  Pac.  Ry.  Co.  v.  Underwood,  470;  15  N.  E.  Rep.  350.] 
90  Ala.  49;  8  So.  Rep.  116;  Darling  v.  Pas- 


Co.,  70  Wis.  216;  35  N.  W.  Rep.  278;  Lortz  v.  New  York,  etc.,  R.  Co.,  31 
N.  Y.  S.  Rep.  1033. 

As  by  another  train. —  Chicago  &  N.  W.  Ry.  Co.  v.  Prescott,  59  Fed. 
Rep.  237;  8  C.  C.  A.  109;  Rumpel  v.  Oregon,  etc.,  Ry.  (Idaho),  35  Pac. 
Rep.  700;  Louisville,  N.  O.  &  T,  Ry.  Co.  v.  French,  69  Miss.  121;  12  So. 
Rep.  338;  Schmidt  u.  Philadelphia  &  R.  R.  Co.,  149  Pa.  St.  357;  2i  Atl. 
Rep.  218;  30  W.  N.  C.  233;  Fletcher  v.  Fitchburg  R.  Co.,  149  Mass.  127; 
21  N.  E.  Rep.  302;  Durbin  v.  Oregon  Ry.  &  Nav.  Co.,  17  Ore.  5;  17  Pac. 
Rep.  5;  Purdy  v.  New  York,  etc.,  R.  Co.,  33  N.  Y.  S.  Rep.  952. 

Or  the  road  is  rendered  dangerous  by  reason  of  its  construction 
(Illinois,  etc.,  R.  Co.  v.  Stables,  62  111.  313;  Indianapolis,  etc.,  R.  Co.  v. 
Stout,  53  Ind.  143;  Mann  v.  Central,  etc.,  R.  Co.,  55  Vt.  484),  the  duty  of 
increased  vigilance  is  imposed  upon  the  company. 

But  it  is  the  duty  of  the  traveler  to  exercise  greater  care  at  an 
obstructed  crossing  than  ordinarily. —  Laverenz  v.  Chicago,  etc.,  R.  Co., 
60  la.  689;  Johnson  v.  Chicago,  etc.,  R.  Co.,  77  Mo.  546;  Strong  v.  Sac- 
ramento, etc.,  R.  Co.,  61  Cal.  326;  Chase  v.  Maine  C.  R.  Co.,  78  Me.  346. 

Where  a  person  who  heard  the  whistle  of  an  approaching  train 
attempted  to  drive  across  the  track  without  knowing  from  what  direction 
the  train  was  coming,  his  view  in  one  direction  being  obstructed,  he  was 
held  guilty  of  gross  negligence,  barring  a  recovery. —  Griffln  v.  Chicago, 
etc.,  Ry.  Co.  <:S  Ix.  633;  27  N.  W.  R-ip.  792. 


CONTKIHITOKY  NEULIGENCE — TIIOUOOOOD  V.  IJKVAN.       /iO? 

-lie  cncounigod  him  in  his  negligciice  (y).     Also,  it  hhouU! 

be  remembered  that  the  case  of  Thoro^ood  v.  Bryan,  .su/tnt, 

has  1)0011   disapproved  of  in  TulT  t'.  Warman,  supra,  and  in 

The  Milan  (c).     It   is  also  disputed  in  the  note  to  Ashl)y 

.  Wliito  (a).     But  it  seems  to  be  settled  hiw  according  Xn 

Wuite   V.  N.  E.  liy.  Co.,  j^ost^  and  Armstroiig  v.  L.  &  Y. 

Ky.    Co.,    supi'a ;  and  to    the  same  effect    is  the  case  of 

Child  I'.   Ilrarn  (^> ),  altii()U<j:h  the  court  seemed  anxious  to 

istinguish  the  case  from  Thorogood    r.   IJiyan  by  saying 

that  the  plainliir  was  the  servant  of  the  railway  company, 

whoso    fences  were  out   of  rci)air,  and  whose   line  he  was 

using   as  such  servant  for  the  company's  purposes  when 

the  defendant's   pigs  upset    his    trolly    and    injured  hiiu. 

Probably  this  case  can  be  better  supported  on  the  ground 

♦  h:it  the  damages  were  too  remote  (c).     The  case  of  Kigby 

.  Hewitt  ( d)  appears  to  be  in  favor  of  the  couuter-proposi- 

1)11,  but  the  judgment  is  unsatisfactory.     Two  omnibuses 

ere  racing,  and  the  point  was  taken  upon  the  argument 

that  the  plaintiff  was  identified  with  the  owner  of  the  omni- 

hus,  and  Thorogood  v.  Bryan  was  cited;    but  the  judgment 

ilocs  not  deal  with  that  question,  but  seems  to  go  upon  the 

(y)  Pltttz  V.  City  of  Cohocs,  2-1  Han,  way  company,   who  had  ncjtlccled   to 

lei;    Mann    r.  Wcland,  8I4    I'a.    St.  243  fence,  pigs  of  defendant  got  on  line  and 

(pasBenger  allowed  to  ride  on  wagon).  npset  plaintiff's  trollj) ; Shearman  r.  An- 

(i)  The  Milan,  1  Lush.  388.  dcrson  27  Kan,  333;  41  Amcr.  Hep.  414 

(<i)  Ashby  V.  White,   1  Sm.  L.  C.  6th  (steer  on  line). 
ed.  aie.  (c)  Addison  on  TorU,  6th  ed.,  p.  27, 

(6)  Child  V.  Hearn,  L.  R.  9  Ex.  476;  43  note  (i). 
I  .  J.  Ex.  100  (plainUff  servant  of  rail-  (d)  Rlgby  r.  Hewitt,  5  Ex.240. 


Negligence  of  Driver  of  Vehicle  no  Bar  to  Recovery  by  Passenger 

for  Injuries.—  The  weight  of  authority  in  this  country  is  opposed  to  the 
doctrine  or  Thorogood  v.  Bryan. 

In  Pennsylvania  (Lockhart  v.  Lichtenthaler,  47  Pa.  St.  151 ;  Phlladel- 
j.hia,  etc.,  R.  Co.  v.  Boyer,  97  Pa.  St.  Itl),  It  has  been  allowed,  and  In 
Iowa  and  Wisconsin  there  is  a  tendency  in  that  direction ;  for  it  haa  been 
held  in  those  States  that  the  contributory  negligence  of  the  driver  of  a 
private  vthirlu  is  imputable  to  one  riding  with  him. —  Artz  r.  Chicago, 
etc.,  K.  Co.,  34  la.  15;{;  Payne  v.  Chica-o,  etc.,  R.  Co.,  3'J  la.  523;  Pri- 
ilc.iux  I'.  Mineral  Point,  43  Wis.  613;  '2S  Am.  Rep.  558;  Otis  v.  Jancsvilie, 


508  CONTRIBUTORY  NEGLIGENCE. 

[407]  ground  that  the  defendant's  omnibus  was  the  cause 
of  the  injury  and  not  the  plaintiff's. 

47  Wis.  422;  Spofford  v.  City  of  Oskaloosa,  51  la.  749;  Slater  v.  Burling, 
ton,  etc.,  Ry.  Co.,  71  la.  209;  32  N.  W.  Rep.  264;  contra,  Nesbet  v.  Town 
of  Gardener,  75  la.  314;  39  N.  W.  Rep.  616. 

So  in  Montana  it  has  been  held,  that  the  negligence  of  the  driver  and 
owner  of  a  private  conveyance  may  be  imputed  to  one  who  voluntarily 
rides  with  him. —  Whittaker  v.  City  of  Helena,  14  Mont.  124 ;  36  Pac. 
Rep.  904. 

(In  a  charge  to  the  jury  in  Morris,  Adm'r  v.  Chicago,  etc.,  R.  Co.  (26 
Rep.  22),  Shiras,  J.,  said :  "  If  a  person  who  is  driving  a  wagon  and  team, 
as  such  driver  has  control  over  the  movements  of  the  wagon,  fails  to 
exercise  proper  care,  skill  or  watchfulness  and  thereby  causes,  or  aids  in 
causing  an  accident  whereby  the  occupants  of  the  wagon  are  iniured, 
such  negligence  on  the  part  of  the  driver  is  in  law  deemed  to  be  the  neg- 
ligence of  the  occupants  and  affects  or  defeats  their  right  of  recovery, 
the  same  as  it  does  the  rights  of  the  driver.") 

To  one  injured,  after  having  surrendered  himself  to  the  care  of  the 
driver,  as  a  blind  person  (Johnson  v.  Gulf,  etc.,  Ry.  Co.,  2  Tex.  Civ.  App. 
139;  21  S.  W.  Rep.  274),  or,  who  has  some  knowledge  of  the  road  and 
opportunity  of  discovering  danger  (Brickell  v.  New  York,  etc.,  R.  Co., 
120  N.  Y.  290;  24  N.  E,  Rep.  449;  Crescent  u.  Anderson,  114  Pa.  St.  643), 
or,  who  has  a  right  to  control  the  driver,  the  rule  that  the  driver's  negli- 
gence may  not  be  imputed  to  the  traveler  has  no  application. — Larkin  v. 
Burlington,  etc.,  Ry.  Co.,  86  la.  492;  62  N.  W.  Rep.  480.  See  Brannen 
V.  Kokomo,  etc.,  R.  Co.,  115  Ind.  115;  17  N.  E.  Rep.  202. 

But  it  is  in  general  held  in  this  country  that  the  contributory  negli- 
gence of  a  carrier  or  of  the  driver  of  a  public  or  private  vehicle  does 
not  bar  the  passenger  of  a  right  of  action  for  injuries. —  Little  v.  Hackett, 
116  U.  S.  366 ;  6  S.  Ct.  Rep.  391 ;  33  Alb.  Law  Jour.  189 ;  Otis  v.  Thorn,  23 
Ala.  469 ;  Wabash,  etc.,  R.  Co.  v.  Schacklet,  105  111.  364 ;  44  Am.  Rep.  791 ; 
Town  of  Albion  v.  Hetrick,  90  Ind.  545;  46  Am,  Rep.  230;  Danville,  etc., 
Tp.  Co.  V.  Stewart,  2  Mete.  (Ky.)  119;  Louisville,  etc.,  R.  Co.  v.  Case's 
Admr.,  9  Bush,  728;  Cuddy  v.  Horn,  46  Mich.  596;  41  Am.  Rep.  178;  Ben- 
nett V.  New  Jersey,  etc.,  Trans,  Co.,  36  N,  J.  L.  225;  13  Am.  Rep.  436; 
New  York,  etc.,  R.  Co.  v.  Steinberger,  47  N.  J.  L.  16;  Chapman  v.  New 
Haven,  etc.,  R.  Co.,  19  N.  Y.  341 ;  Sheridan  v.  Brooklyn  City  R.  Co.,  3G 
N.  Y.  39;  Barrett  u.  Third  Ave.  R.  Co.,  46  N.  Y.  628;  Robinson  ».  New 
York,  etc.,  R.  Co.,  66  N.  Y.  11 ;  23  Am.  Rep.  1 ;  Dyer  v.  Erie  Ry.  Co.,  71 
N.  Y.  228;  Covington  Transfer  Co.  v.  Kelly,  36  Ohio  St.  86;  38  Am.  Rep. 
558;  Street  Railway  Co.  u.  Eadie,  43  Ohio  St.  91;  Lapsley  u.  Union  Pac,  B. 
Co.,  60  Fed.  Rep.  172,  affirmed  51  Fed.  Rep.  174;  2  C.  C.  A.  149;  4  U.  S. 
App.  542;  McCaffrey  v.  President,  etc.,  Del.  &  H,  C.  Co.,  62  Hun,  618;  16 
N.  Y.  S.  Rep.  495;  Cahill  u.  Cincinnati,  etc.,  Ry.  Co.,  92  Ky.  346;  18 
S,  W.  Rep.  2;  East  Tenn.,  V.  &  G.  Ry.  Co.  v.  Markens,  88  Ga.  60;  13  S. 


CONTKim  TOUV  NKULIOENCK  — TIIOUOOOOD  I'.  IJUYAN.       501) 

[408]  It  is  suggested  in  the  note  to  Asliby  r.  White,  1 
Sm.  L.  C.  p.  227,  6ili  ed.,  that  both  the  wrong-doers  aro 

E.  Rep.  866;  Elytx)n  Land  Co.  v.  MJnijea,  89  Ala.  521;  7  So.  Rrp.  666; 
Missouri  Pac.  Ry.  Co.  v.  Texas  Pac.  Ry.  Co.,  41  Ftd.  Kep.  ;nO;  Mciro- 
politan  St.  R.  Co.  v.  Powell,  8'J  Ga.  601;  IG  S.  E.  Rop.  IIH;  (Jtiricist  r  r. 
Galveston,  etc.,  Ry.  Co.,  2  Tix.  Civ.  App.  230;  21  S.  W.  Rep.  C'A\\  Hoard 
Com'rs  Boone  Co.  v.  Mulchler  (Iiuliana),  SlI  N.  K.  Rip.  r>34;  Alabama  &. 
V.  Ry.  Co.  V.  Davis,  (lit  Mass.  444;  13  So.  Rep.  iVx\;  Markliam  t-,  Houston 
D.  N.  Co.,  73  Tex.  247;  11  S.  W.  Rep.  131;  New  York,  P.  &  N.  It.  Co.  r. 
Cooper,  85  Va.  931);  9  S.  E.  Rep.  321;  Galveston,  H.  4  S.  A.  R.  Co.  p. 
Kutac,  72  Tex.  G43;  11  S.  W.  Rep.  127;  Seaman  v.  Koehler,  122  N.  Y.  Rep. 
64G;  26N.  E.ltep.  353. 

Some  ol  the  early  New  York  cases  announced  a  different  rule.— Rrown 
V.  New  York,  eta.,  R.  Co.,  32  N.  Y.  697;  Mooiiey  r.  Iluilson  River  R.  Co., 
6  Robt.  648;  Beck  v.  Ea^t  River  Ferry  Co.,  G  Roht.  82.  But  llie.He  have 
been  overruled. —  See  supra,  and  Masterson  o.  New  York,  etc.,  R.  Co., 
84  N.  Y.  247. 

And  with  the  exceptions  noted  there  has  been  no  distinct  ruling  else- 
where In  favor  of  the  doctrine. 

The  rule  is  applied  In  a  case  where  a  passenj^er  was  injured  by  a  col- 
lision of  one  railroad  train  with  another  (Chapman  v.  New  Haven  R.  Co., 
19  N.  Y.  341;  Bunting  o.  Hogselt,  139  Pa.  St.  3G3;  27  VV.  N.  C.  317;  21 
Atl.  Rep.  31,  overruliu:^  Lockhart  v.  Lichteuthalcr,  4G  Pa.  St.  151,  und 
Railroad  Co.  v.  Boyer,  97  Pa.  St.  91") ;  of  a  street  railroad  car  with  the  car 
of  a  transfer  company  (Transfer  Co.  v.  Kelly,  3G  Ohio  Si.  ^^;;  .'{8  Am.  Rt-p. 
668);  of  a  street  railroad  car  with  a  railroad  train  (Bennett  r.  New 
Jersey,  etc.,  R.  Co.,  36  N.  J.  L.  225;  McCallum  v.  Long  Island  R.  Co.,  38 
llun,  5G9;  Geor^iia  Pac.  Ry.  Co.  t>.  Hughes, 87  Ala.  GIO;  G  So.  Re|).  413; 
Gulf,  C.  &  S.  E.  Ry.  Co.t?.  Pendery  (Texas),  29  S.  W.  Rep.  103H;  Little 
Bock&M.  R.  Co.  V.  Harrell,  60  Ark.  454;  25  S.  W.  Rep.  117;  Whelan  r. 
New  York,  etc.,  R.  Co.,  38  Fed.  Rep.  15) ;  of  a  hired  hack  with  a  railroad 
train  (New  York,  etc.,  R.  Co.  v.  Steinberger,  47  N.  J.  L.  IGl;  Little  r. 
Hackett,  UG  U.  S.  3GG;  G  S.  Ct.  Rep.  391;  Roach  v.  Western  &  A.  R.  Co., 
93  Ga.  785;  21  S.  E.  Rep.  G7;  Becke  v.  Missouri  Pac.  Ry.  Co.,  102  Mo. 
644;  13  S.  \V.  Rep.  1053);  of  a  private  wagon  wilh  a  street  railroad  car 
(Street  Ry.  Co.  v.  Eadie,  43  Ohio  St.  91);  of  a  buugy  wilh  a  railroad 
Ualn  (Philadelphia,  W.,  etc.,  R.  Co.  v.  Homeland,  GG  Md.  149)  ;  of  a  public 
conveyance  and  another  vehicle  (Holzab  v.  New  Orleans,  etc.,  R.  Co.,  3s 
La.  Ann.  185;  58  Am.  Rep.  177);  of  a  railroad  train  with  a  prlv:H. 
wagon.—  Dyer  v.  Erie  Ry.  Co.,  71  N.  Y.  228. 

The  reason  of  the  rule  is  that  the  passenger  has  no  control  over  the 
driver  or  conductor  of  the  vehicle  and  cannot  be  held  to  be  the  ma.stcr  or 
principal,  or  In  any  way  Identified  with  either  of  them,  and  U  therefore 
not  responsible  for  their  acts;  and  if  he  were  the  uiast«  r  or  prlncip.il  ho 
would  not  only  be  debarred  of  an  acllon  for  their  negligence  but  would 


510  CONTRIBUTORY  NEGLIGENCE. 

liable  to  [409]  the  innocent  plaintiff  passenojer ;  which 
is  only  another  way  of  saying  that  the  passenger  is  not 

be  liable  to  others  for  the  consequences  of  such  negligence.  See  State 
V.  Boston  &  M.  R.  Co.,  80  Me.  430;  15  Atl.  Rep.  36;  Minster  v.  Citizens 
Ry.  Co.,  53  Mo.  App.  276;  Town  of  Knightstown  v.  Musgrove,  18  N.  E. 
Rep.  452;  Noyes  v.  Town  of  Boscawen,  64  N.  H.  361;  10  Atl.  Rep. 
690;  Philadelphia,  W.  &  B.  R.  Co.  v.  Hogeland,  66  Md.  149;  7  Atl. Rep. 
105. 

In  New  York,  etc.,  R.  Co.  v.  Steinberger  (47  N.  J.  L.  161),  the  plaintiff 
was  injured  while  riding  in  a  hired  hack  by  a  coUison  with  a  railroad  train 
through  the  negligence  of  the  driver. 

The  court  say:  "  Under  the  principle  which  governs  in  this  respect, 
there  is  no  distinction  between  a  public  conveyance  in  which  a  passenger 
takes  passage  and  a  coach  hired  by  him  from  a  livery  for  a  particular 
journey;  nor  is  the  situation  changed  by  the  fact  that  the  negligence  of 
the  driver  is  invoked  simply  as  contributory  negligence  to  exclude  the 
passenger  from  his  action  against  a  third  person  for  an  injury  resulting 
from  the  negligence  of  both  parties.  As  the  Chief  Justice  points  out  in 
his  opinion  in  Bennett  v.  New  Jersey,  etc.,  R.  Co.,  the  identification  of 
the  passenger  with  the  driver  for  the  purpose  of  fixing  on  the  former 
responsibility  for  the  latter's  act  can  result  only  from  considering  the 
driver  as  the  servant  of  the  passenger;  and  the  driver  can  not  be  con- 
verted into  his  servant  for  the  single  purpose  of  preventing  the  passenger 
from  bringing  suit  against  a  third  party  whose  negligence  has  co-operated 
with  that  of  the  driver  in  the  production  of  the  injury.  Identification 
must  be  so  complete  that  the  passenger  would  not  only  be  debarred 
from  a  suit  against  the  proprietor  of  the  coach  for  the  driver's  negli- 
gence in  the  particular  instance,  but  would  also  be  responsible  to  third 
persons  for  injuries  sustained  by  the  carelessness  of  the  driver  in  the 
course  of  the  journey." 

A  similar  conclusion  was  reached  in  Little  v.  Hacket,  (116  U.  S.  366; 
33  Alb.  Law  Jour.  189,  s?«pra),  where  it  was  held  that  a  person  who  hires  a 
public  hack  and  gives  the  driver  directions  as  to  the  place  to  which  he 
wishes  to  be  conveyed,  but  exercises  no  other  control  over  the  conduct 
of  the  driver,  is  not  responsible  for  his  acts  or  negligence,  or  prevented 
from  recovering  against  a  railroad  company  for  injuries  suffered  from 
the  collision  of  its  train  with  the  hack  caused  by  the  negligence  of  both 
the  managers  of  the  train  and  the  driver. 

The  court  say:  "  The  cases  cited  from  the  English  courts  and  numer- 
ous others  decided  in  the  courts  of  this  country  show  that  the  relation  of 
master  and  servant  does  not  exist  between  the  passenger  and  the  driver, 
or  between  the  passenger  and  the  owner.  In  the  absence  of  this  relation, 
the  imputation  of  their  negligence  to  the  passenger,  where  no  fault  of 
omission  or  commission  is  chargeable  to  him,  is  against  all  legal  rules. 
If  their  negligence  could  be  imputed  to  him  it  would  render  him  equally 


THOROCiOOD    V.  BUYAN.  f)  1  1 

identified  with  his  [410]  driver  ;  for,  if  he  he,  he  hns  no 
remedy  against  his  own  driver,  for  they  are  just  tortfeai^ors, 

with  them  responsible  to  third  parties  thereby  injured  and  would  alAo 
|)reclude  him  from  maintaining  an  action  against  the  owner  for  liijurlen 
received  by  reason  of  It,  but  neither  of  these  conclusions  can  Ije  main- 
tained, neither  has  the  support  of  any  adjudged  cases  entitled  to 
consideration. 

"The  truth  is  the  decision  In  Thorogood  v.  Bryan,  rests  upon  Inde- 
fensible ground.  The  identification  of  the  passenger  with  tlie  negligent 
driver  or  the  owner  without  his  personal  co-operation  or  encouragement 
is  a  gratuitous  assumption.  There  is  no  such  Identity.  The  parties  arc 
not  in  the  same  position.  Tlie  owner  of  a  public  conveyance  Is  a  carrier 
and  the  driver  or  the  person  managing  it  is  his  servant.  Neither  of  them 
is  the  servant  of  the  passenger  and  his  asserted  identity  with  them  Is 
contradicted  by  the  daily  experience  of  the  world." 

In  this  case  the  court  say  further:  "  Those  on  a  hack  do  not  become 
responsible  for  the  negligence  of  the  driver  if  they  exercise  no  control 
over  him  further  than  to  indicate  the  route  they  wish  to  tnivel 
or  the  places  to  which  they  wish  to  go.  If  he  is  their  agent,  so  that 
his  negligence  can  be  imputed  to  them  to  prevent  their  recovery 
asainst  a  third  party,  he  must  be  their  agent  in  all  other  respects,  so  far 
as  the  management  of  the  carriage  Is  concerned,  and  responsibility  to 
third  parties  would  attach  to  them  for  injuries  caused  by  his  negligence 
in  the  course  of  his  employment.  But  as  we  have  already  stated,  respon- 
sibility cannot,  within  any  recognized  rules  of  law,  be  fastened  upon  one 
who  has  in  no  way  interfered  with  and  controlled  In  the  matter  causing 
the  Injury.  From  the  simple  fact  of  hiring  the  carriage  or  riding  in  it  no 
such  liability  can  arise.  The  party  hiring  or  riding  must  in  some  way 
have  co-operated  in  producing  the  injury  complained  of  before  he  incurs 
any  liability  for  it.  *  If  the  law  were  otherwise,'  as  said  by  Mr.  Justice 
Depue  In  his  elaborate  opinion  in  the  latest  case  In  New  Jersey,  'not  only 
the  hirer  of  the  coach,  but  also  all  the  passengers  In  It,  would  be  under 
a  constraint  to  mount  the  box,  and  superintend  the  conduct  of  the  driver 
in  the  management  and  control  of  his  team,  or  be  put  for  remedy  exclu- 
sively to  an  action  against  the  irresponsil)le  driver,  or  equally  irresponsi- 
ble owner  of  a  coach  taken,  it  may  be,  from  a  coach-stand,  for  the 
consequences  of  an  injury  which  was  the  product  of  tlie  co-operating 
wrongful  acts  of  the  driver  and  of  a  third  person,  and  that,  too,  though 
the  passengers  were  ignorant  of  the  characb-r  of  the  driver,  and  of  the 
responsibility  of  the  owner  of  the  team,  and  strangers  to  the  route  over 
which  they  were  to  be  carried."  — 47  N.  J.  L.  171.  "In  spoaklng  of 
the  '  identification  '  of  the  passenger  in  the  omnibus  with  the  drlvi-r, 
mentioned  in  Thorogood  v.  Bryan,  the  court,  by  the  chief  justice,  said: 
'Such  identification  could  result  only  in  one  way;  that  Is,  by  con.'«lder- 
ing  such   driver  the   servant  of  the  passenger.     I   can  see  no   ground 


512  CONTRIBUTORY   NEGLIGENCE. 

and  he  has  no  remedy  [411]  against  the  other  driver 
because  his  own  driver  (with  whom  he  is  identified)  has 
contributed  to  the  injury.  It  is  submitted  that  the  cases 
of  "identification"  have  gone  too  far,  and  that  a  mere 
passive  passenger  in  a  public  conveyance  cannot  be  answer- 
able for  the  acts  of  the  driver. 


upon  which  such  a  relationship  is  to  be  founded.  In  a  practical  point 
of  view,  it  certainly  does  not  exist.  The  passenj^er  has  no  control  over 
the  driver  or  agent  in  charge  of  the  vehicle ;  and  it  is  this  right  to  con- 
trol the  conduct  of  the  agent  which  is  the  foundation  of  the  doctrine  that 
the  master  is  to  be  affected  by  the  acts  of  his  servant.  To  hold  that  the 
conductor  of  a  street  car  or  of  a  railroad  train  is  the  agent  of  the  num- 
erous passengers  who  may  chance  to  be  in  it,  would  be  a  pure  fiction. 
In  reality  there  is  no  such  agency;  and  if  we  impute  it  and  correctly 
apply  legal  principles,  the  passenger,  on  the  occurrence  of  an  accident 
from  the  carelessness  of  the  person  in  charge  of  the  vehicle  in  which  he 
is  being  conveyed,  would  be  without  any  remedy.  It  is  obvious  in  a  suit 
against  the  proprietor  of  the  car  in  which  he  was  the  passenger,  there 
could  be  no  recovery  if  the  driver  or  conductor  of  such  car  is  to  be 
regarded  as  the  servant  of  the  passenger.  And  so  on  the  same  ground 
each  passenger  would  be  liable  to  every  person  injured  by  the  careless- 
ness of  such  driver  or  conductor,  because  if  the  negligence  of  such  agent 
is  to  be  attributed  to  the  passenger  for  one  purpose,  it  would  be  entirely 
arbitrary  to  say  that  he  is  not  to  be  affected  by  it  for  other  purposes. — 
36  N.  J.  L.  227,  228.'  " 

Ttie  Rule  does  not  Apply  as  between  Shipper  of  Goods  and  Car- 
rier.—  But  this  rule  does  not  apply  as  between  the  shipper  of  goods  and 
the  carrier;  for  the  latter  in  such  case  is  held  to  be  the  agent  of  the 
former,  so  that  the  carrier's  contributory  negligence  will  bar  an  action  by 
the  shipper  for  the  loss  of  his  goods. —  Duggins  v.  Watson,  15  Ark,  118; 
Broad  well  v.  Swigert,  7  B.  Mon.  39;  Arctic  Fire  Ins.  Co.  v.  Austin,  69  N. 
Y.  470;  Simpson  v.  Hand,  6  Whart.  311. 

Nor  does  it  apply  as  between  master  and  servant. — Lake  Shore,  etc., 
R.  Co.  V.  Miller,  25  Mich.  274. 

Nor  as  between  husband  and  wife,  the  contributory  negligence  of  the 
husband  driving  a  vehicle  being  imputable  to  the  wife  so  as  to  bar  an 
action  by  her  for  injuries  so  received. —  Carlisle??.  Sheldon,  38  Vt.  440; 
Peck  V.  New  York,  etc.,  R.  Co.,  50  Conn.  379;  Gahn  u.  Otturawa,  60  la.  429. 
Contra,  Florl  v.  St.  Louis,  3  Mo.  App.  231;  Morris  v.  Chicago,  etc.,  K. 
Co.,  26  Fed,  Rep.  22;  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Mcintosh  (Indiana), 
38  N.  E.  Rep.  476;  Chicago,  St.  L.  &  P.  R.  Co.  v.  Spilker,  134  Ind.  380;  33 
N.  E.  Rep.  280;  Sheffield  v.  Central  Union  Tel.  Co.,  36  Fed.  Rep.  164. 
See  Toledo,  St.  L.  &  K.  R.  Co.  v.  Crittenden,  42  111.  App.  469. 


COM  KIliUTOKY    NEOLIOENCK  —  CHII,|)|;kN  , 


:  1  :\ 


The  (loctrino  of  contributory  negligcnct'  is  applied  lo 
cbiKlren,  and  to  those  having  the  control  of  them  («  ). 

In  one  case  Channel),  B.,  at  nisi  prius  \h  reported  to 
have  said:  *'Tho  doctrine  of  contril)ut()rv  nogligeucu  docs 
not  apply  to  an  infant  of  tender  ago"  ( /). 

This  rule  is  scarcely  satisfactory,  because  it  is  difBcult  to 
say  what  is  or  is  not  a  tender  age  ;  but  a  better  rule  which 
would  prol)ably  excuse  the  negligence  of  a  chihi  of  tender 
age  is  that  a  child  is  only  bound  to  exercise  such  a  degree 
of  care  as  children  of  his  particular  age  may  be  presumed 
capable  of  exercising  (^). 


(e)  Singleton  v.  Kast.  Count.  Ry.  Co., 
7C.  B.  N.  S.  287;  Walte  r.  N.  K.  Ry.  Co., 
E.  B.  A  E.  719.  In  America  this  aiipears 
to  bo  limited  (In  the  case  of  persons 
bavlDg  ttio  control  of  infants)  to  their 
negligence  In  placing  tliu  infant  in  a 
poeltlon  of  danger,  but  not  to  tlioir  neg- 
ligence in  respect  of  their  own  parttcalar 
acts.  Shearman,  p.  59,  para.  48.  Cullaban 
r.  Sharp,  27  Uun,  X.  Y.  85;  Cauley  v. 
I'lttsburgh  Ry.  Co.,  95  Pa.  St.  3'.»8;  40 
Amer.  Rep.  664 ;  St.  Louis  Ry.  Co.  v.  Free- 
man, 36  Aric  41.  In  America  It  seems 
even  tliat  in  a  suit  by  a  child,  contribu- 
tory negligence,  either  of  tlie  clilld  or  Its 
parent,  can  not  be  set  upas  a  defense; 
bat  In  an  action  by  the  parent  for  causing 
the  death  of  the  child,  the  negligence  of 
the  parent  can  be  pleaded,  I'enns.  Ry 
Co.  I?.  James,  81i  Pa.  St.  194  ;  [see  infra]. 
In  the  following  Scotch  cases  the  plain- 
tiffs Were  held  dlseiitillcd  to  eiio  for  In- 
Jnry  done  to  thelrchildrcn  on  the  ground 
that  It  was  contributory  negligence  in 
them  to  let  their  children  go  out  alone. 
Davldaon  v.  Monliland  Ky.  Co.,  27  Jur, 
611;  Lumsden  v.  Russell, 28  Jur.  ISl ;  Bal- 
four r.  Baird,  30  Jur.  124;  and  see  an 
American  ca.se,  Atchison  Ry.  Co.  t'. 
Fllnn,  U  Kun.  627. 

(/)  Gardner  v.  Grace,  1  F.  &  F.  359 
(child  threeand  a-half  yearsold  run  over 
by  defendant),  action  brought  in  name 
•t Child;  [Fink  v.  Missouri  Furnace  Co., 
lOMo.  App.  61  (child  four  yearsold  inca- 
pable of  negligence);  Gavin  r.  Chicago 
city,  97  111.  66 ;  37  Amer.  Rep.  99 ;  Chicago 
By.  Co.  V.  Schamilowsky,  5  HI.  App.  613. 


fSoo  Wiley  r.  Ivong  Island  R,  Co.,  76 
nan, 29;  27  N.  V.  S.  Rep.  772;  Bottoms  r. 
Seaboard  &  It.  R.  Co..  114  N.  C.  e«i;  lU  .S. 
E.  Rep.  730;  Schnur  i-.  Cititons'  Tracllon 
Co.,  LW  Pa.  St.  29;  25  All.  Rep.  650; 
Ilamilton  v.  Morgan's  I..,  etc.,  Co.,  42 
La.  An.  824  ;  8  So.  Uep.  .586;  Chicago  City 
Ry.  Co.  r.  Wilco.x  (Illinois),  24  N.  K.  Rep. 
419,  reversing  :U  111.  App.  450;  Clly  of 
Vicksburg  i-.  Mcl.,aln,i>7  .Miss.  4  ;•>  So.Rcp- 
774,  following  Westbrook  v.  Railroad  Co., 
66  Miss.  .560;  6  So.  Rep.  321;  Barni-.i  r. 
Shreveport  City  It.  Co.  (Iji.).  17  So.  Rep. 
782;  Central  Trust  Co.  v.  Wabaah,  etc., 
Ry.  Co.,  31  Fed.  Uop.  246.J 

(17)  Glover  i\  Gray,  9  111.  .Vpp.  ."<;•.•; 
Vlckirs  f.  Atlanla  Ity.  Co.,  64  tin  ao6; 
Chicago  Co.  r.  Sinllh,  46  Mich.  504;  40 
Amer.  Uep.  66i),  note  (boy  eight  years  old 
on  engine);  Byrne  v.  N.  Y.  Central  Uy.. 
83  N.  Y.  620) ;  Donoho  v.  Vulcan  Iron 
Works,  7  Mo.  App  447.— [See  Collins  r. 
South  Boston  R.  Co.,  142  M.iss.  SOI;  87 
Am.  Kep.675;  Clly  of  Pckln  v.  .Mc.Mnhcn, 
154  III.  141;  39  N.  E.  Rep.  4S4;  ,"?lone  f. 
Dry  Dock,  etc.,  R.  Co.,  46  Uun,  184; 
RIdenhour  v.  Kansas  City  Cable  By.  Co  , 
102  Mo.  270;  13  S.  W.  Rep.  8K9;  14  8.  W. 
Rep.  760;  Uaycs  r.  Nororo-ts,  1«3  Ma»«. 
546;  39  N.  1;.  Rep.  28';  Rosenl" 
Durfree,  87  Cal.  54^5;  '^6  Puc  B.  i 
Beckham  f.IIIllicr,  47  .N.J.  I..  12;  iv.i..i. 
V.  Chicago,  cic,  Ry.  Co.  (Minn),  59  N'. 
W.  Rep.  307;  Me.xscnger  v.  Dcnnlc,  141 
MasH.  ■i:\:>;  Martin  r.  Cahlll.  30  Hun.  445; 
Philudoli)hin,  B.  A  R.  Co.  r.  I^ycr.  Hi 
Pa.  Si.  411;  Lehman  v.  Louisiana  W.  U. 
Co.,  37  La.  Ann.  705.J 


33 


514  CONTKIBCTORY   NEGLIGENCE. 

lu  an  American  case  where  the  child  was  six  years  old, 
and  shook  a  gate  which  had  been  negligently  hung,  and 
which  fell  upon  him,  and  the  jury  found  that  considering 
the  age  and  circumstances  there  was  no  negligence  in  the 
[412]  child,  the  verdict  was  upheld  (Ji).  This  is  in  truth 
nothing  more  than  an  illustration  of  the  ordinary  rule  that 

(h)  Birge  v.  Gardiner,  19  Conn.  507. 

Children. —  The  rule  of  imputed  negligence  obtains  in: — 

California. —  Schiertiold  v.  North,  etc.,  R.  Co.,  40  Cal.  447;  Meeks  «. 
Southern,  etc.,  R.  Co.,  52  Cal.  602;  56  Cal.  513;  38  Am.  Rep.  67. 

Indiana. —  Evansville,  etc.,  R.  Co.  v.  Wolf,  59  Ind.  89 ;  Jeffersonville, 
etc.,  R.  Co.  V.  Bowen,  40  Ind.  545. 

Kansas. —  Atchison,  etc.,  R.  Co.  v.  Smith,  28  Kan.  541. 

Kentucky.— ^chlQviks  v.  Central  Pass.  Ry.  Co.  (Ky.),  23  S.  W.  Rep. 
589. 

Maine. —  Leslie  v.  City  of  Lewiston,  62  Me.  468;  Brown  v.  European, 
etc.,  R.  Co.,  58  Me.  384. 

Maryland. —  McMahon  v.  Northern,  etc.,  R.  Co.,  39  Md.  439;  Balti- 
more, etc.,  R.  Co.  V.  McDonnell,  43  Md.  551; 

Massachusetts. —  Lynch  v.  Smith,  104  Mass.  52;  Gibbons  ».  Williams, 
135  Mass.  333;  Grant  v.  City  of  Fitchburg,  160  Mass.  16;  35  N.  E.  Rep. 
84 ;  Marsland  u.  Murray,  148  Mass.  91;  18  N.  E.  Rep.  680;  Bliss  v.  Town 
of  South Hadley,  145  Mass.  91;  13  N.  E.  Rep.  352. 

Minnesota. —  Fitzgerald  u.  St.  Paul,  etc.,  R.  Co.,  29  Minn.  336;  43  Am. 
Rep.  212;  Weissner  v.  St.  Paul  City  Ry.  Co.,  47  Minn.  468;  50  N.  W. 
Rep.  606. 

Neio  York.—  Ihl  v.  42nd  St.  R.  Co.,  47  N.  Y.  323;  Cosgrove  v.  Ogden, 
49  N.  Y.  255;  Weil  v.  Dry  Dock,  etc.,  R.  Co.,  119  N.  Y.  147;  23  N.  E. 
Rep.  487;  Chrystal  u.  Troy  &  B.  R.  Co.,  105  N.  Y.  164;  11  N.  E.  Rep.  380. 

The  rule  is  denied  in: — 

Alabama. —  Government  St.  R.  Co.  v.  Hanlon,  53  Ala.  70.  An  infant 
under  six  is  held  not  of  sufficient  discretion  to  be  guilty  of  contributory 
negligence. —  Bay  Shore  R.  Co.  p.  Harris,  67  Ala.  6. 

Arkansas.— ^t.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Rexroad,  59  Ark.  180;  26 
S.  W.  Rep.  1037. 

Connecticut. —  Bronsonv.  Southbury,  37  Conn.  199;  Birge  v.  Gardiner, 
19  Conn.  507. 

Georgia. —  Ferguson  v.  Columbus  &  R.  Ry.  Co.,  77  Ga.  102;  Atlanta  & 
C.  Air  Line  Ry.  Co.  v.  Gravitt,  93    Ga.  369;  20  S.  E.  Rep.  550. 

Illinois. —  While  the  doctrine  formerly  obtained  in  this  State  (Gavin 
V.  City  of  Chicago,  97  111.  66;  37  Am.  Rep.  89;  Toledo,  etc.,  R.Co.  v. 
Grabif,  88  111.  441)  the  courLs  now  seem  to  uniformly  deny  it. —  Chicago 
City  Ry.  Co.  v.  Wilcox,  24  N.  E.  Rep.  419;  31  111.  App.,  450;  138  111.370; 


CONTKIBUTOUY    NKULUiKNCK  —  (  lIll,i>i;KN  .  .'  1  T) 

what  is  [41.'}]  nogligeiice  in  any  i):irlicular  jutm)!!  iIc- 
peiuls  upon  all  the  circumstances  of  the  case  (/). 

(0  Seo  In  Lynch  v.  N'urdin,  1  i).  It.  i'J  r.  Macflc,  2  H.  A  C.  744,  aconit,  howoTcr. 

at  p.  'M  anil  al  pp.  38, :('.),  and  l>ay  r.  Mid-  scarcely  to  rccognlzu  such  an  cscub«,  He« 

land  Ky.  Co.,  34  L.  T.  N.  S.  30  (child  seven  Coleman  f.  .s.  K.  Uy.,  4  11.  A  C.  OIW  (boy 

years  of  «j?o  .sliding  along  the  ralllnKS  of  twelve  yearn  of  a({e). 
of  a  bridge  slipped  through);    Hughes 

J7  N.  E.  Rep.  899;  City  of  Murphysboro  r.  Woolsey,  47  III.  App.  447; 
Chicago  City  Ry.  Co.  v.  Robinson,  27  111.  App.  2C;  127  111.  1;  18  N.  E. 
Uip.  772. 

/oioa.— Wymore  v.  Mahaska  County,  78  la.  396;  43  N.  W.  Rep.  264. 
But  see  Payne  v.  Iluineston  &  S.  R.  Co.,  70  la.  584;  31  N.  W.  Rep.  886. 

Louisiana. —  Weslerlleld  v.  Levis,  43  La.  Ann.  63;  9  So.  Rop.  52. 

Michigan.—  Shippy  v.  Village  of  Au  Sable,  85  Mich.  280;  48  N.  W- 
Rep.  584. 

Misaisi^ippi. —  Mackey  v.  City  of  Vicksburg,  64  Miss.  777;  2  So.  Rep. 
J 78;  Westbrook  v.  Mobile  &  O.  R.  Co.,  W  Miss.  560;  6  So.  Rep.  321. 

Missouri,  —  Frick  v.  St.  Louis,  etc.,  R.  Co.,  75  Mo.  542,  595;  Winters 
r.  Kansas  City  Cable  Ry.  Co.,  99  Mo.  609;  12  S.  W.  Rep.  652. 

Nebraska.  —  Huff  v.  Ames,  16  Neb.  139. 

Neio  Hampshire.  —  Bisaillou  v.  Blood,  64  N.  II.  665;  15  Atl.  Rep.  147. 

New  Jersey/. ^Newman  v.  Phillipsburgh  St.  C.  R.  Co.,  52  N.  J.  L. 
446;   19  Atl.  Rep.  1102. 

North  Carolina.  — Bottoms  v.  Seaboard  &  R.  R.  Co.,  114  N.  C.  699; 
19  S.  E.  Rep.  730. 

.  OAio.  — Bellefontaine,  etc.,  R.  Co.  v.  Snyder,  18  Ohio  St.  399,  Cleve- 
land, etc.,  R.  Co.  V.  Manson,  30  Ohio  St.  451 ;  Street  Ry.  Co.  v.  Eadle, 
43  Ohio  St.  91;  St.  Clair  St.  Ry.  Co.  v.  Eadle,  43  Ohio  St.  91;  54  Am. 
Bep.  144,  note. 

Pennsylvania.  —  Pennsylvania  R.  Co.  v.  Mahoney,  67  Pa.  St.  187; 
Philadelphia,  etc.,  R.  Co.  o.  Long,  75  Pa.  St.  257;  Erie  City  Pa.ss.  Ry. 
Co.  r.  Schuster,  113  Pa.  St.  412;  57  Am.  Rep.  471.  But  see  Lederman  r. 
Pennsylvania  R.  Co.,  165  Pa.  St.  118;  30  Atl.  Rep.  725. 

Tennessee.  —  Whirley  r.  Whiteraan,  1  Head,  610. 

Texas.—  Riiilroud  Co.  v.  Hcrbeck,  60  Tix.  612;  G.,  II.  &  H.  Ry.  Co. 
V.  Moore,  59  Tex.  64;  Texas  &  Pac.  Ry.  Co.  v.  Fletcher,  6  Tex.  Civ.  App. 
786;  26  S.  W.  Rep.  446;  Houston  City  St.  Ry.  Co.  v.  Rlchart  (Tex.  Civ. 
App.),  27  S.  W.  Rep.  918;  San  Antonio  St.  Ry.  Co.  v.  CaiUonetlo,  79 
Tex.  341;  15  S.  W.  Rep.  390. 

Utah.  — mii^y  V.  Salt  Lake  R.  T.  Co.,  10  Utah,  428;  37  Pac.  Rep.  681. 

Vermont.  —  Robinson  v.  Cone,  22  Vt.  213. 

Ftr(7uua.  — Norfolk,  etc.,  R.  Co.  v.  Ormsby,  27  Gratt.  455;  Norfolk  A 
W.  R.  Co.  V.  Groseclose,  88  Va.  267;   13  S.  E.  Rep.  4.->4. 

The  leading  case  establishiug  the  doctrine  of  imputed  negligence  in 


516  CONTKIBUTORY  NEGLIGENCE. 

[414]  In  Lynch  v.  Nurdin  (^),  the  defendanjt  had  been 
guilty  of  negligence  in  leaving  a  cart  unattended ;  but  in 

(Ji)  See  ante,  p.  31. 

this  country,  is  Hartfleld  v.  Roper  (21  Wend.  615),  where  a  child  about 
two  years  of  age  was  run  over  by  a  sleigh  while  sitting  unattended  In 
the  highway,  before  it  was  perceived  by  the  driver.  The  court  said: 
"The  custody  of  such  child  is  confided  by  law  to  its  parents  or  to  others 
standing  in  their  place,  and  it  is  absurd  to  imagine  that  it  could  be  ex- 
posed in  the  road  as  this  child  was  without  gross  carelessness.    *    •    * 

"  It  is  perfectly  well  settled  that  if  a  party  inj  ured  by  a  collision  on  the 
highway  has  drawn  the  mischief  upon  himself  by  his  own  neglect,  he  is 
not  entitled  to  an  action,  even  though  he  be  lawfully  in  the  highway  pur- 
suing  his  travels,  which  can  scarcely  be  said  of  a  toppling  infant  suffered 
by  his  guardians  to  be  there,  either  as  a  traveler  or  for  the  purpose  of 
pursuing  his  sports.  The  application  may  be  harsh  when  made  to  small 
children.  As  they  are  known  to  have  no  personal  discretion,  common 
humanity  is  alive  to  their  protection ;  but  they  are  not  therefore  exempt 
from  the  legal  rule  when  they"  bring  an  action  for  redress ;  and  there  is 
no  other  way  of  enforcing  it,  except  by  requiring  due  care  at  the  hands 
of  those  to  whom  the  law  and  the  necessity  of  the  case  have  delegated 
the  exercise  of  discretion.  An  infant  is  not  sui  juris.  He  belongs  to 
another  to  whom  discretion  in  the  care  of  his  person  is  exclusively  con- 
fided. That  person  is  keeper  and  agent  for  this  purpose,  and  in 
respect  to  third  persons,  his  act  must  be  deemed  that  of  the  infant, 
his  neglect,  the  infant's  neglect.  *  *  *  jf  i^jg  proper  agent  and 
guardian  has  suffered  him  to  incur  mischief,  it  is  much  more  fit  that 
he  should  look  for  redress  to  that  guardian,  than  that  the  latter  should 
negligently  allow  his  ward  to  be  in  the  way  of  travelers,  and  then 
harass  them  in  courts  of  justice,  recovering  heavy  verdicts  for  his  own 
misconduct." 

The  leading  case  denying  this  doctrine  is  Robinson  v.  Cone  (22  Vt. 
213).  In  that  case  a  boy  three  years  and  nine  months  old  was  run  over 
by  a  sleigh  while  sliding  down  a  hill  in  the  highway  lying  upon  his 
breast  on  a  sled. 

Redfield,  J.,  said:  "  And  we  are  satisfied  that  although  a  child  or  idiot 
or  lunatic  may  to  some  extent  have  escaped  into  the  highway  through  the 
fault  or  negligence  of  his  keeper,  and  so  be  improperly  there,  yet  if  he  is  hurt 
by  the  negligence  of  the  defendant,  he  is  not  precluded  from  his  redress. 
If  one  know  that  such  a  person  is  in  the  highway  or  on  a  railway,  he  is 
bound  to  a  proportionate  degree  of  watchfulness,  and  what  would  be 
but  ordinary  neglect  in  regard  to  one  whom  the  defendant  supposed  a 
person  of  full  age  and  capacity,  would  be  gross  neglect  as  to  a  child  or 
one  known  to  be  incapable  of  escaping  danger. —  Boss  v.  Litton,  5  Car.  & 
P.  407."    The  court  concludes  that  the  plaintiff  was  not  bound  to  the 


CONTRIBUTORY    NEGLIGENCE  —  CHIIDIti::, .  T)  1  7 

Hughes  [415]  v.  MucHo  (/),  Iho  ccll:ir-llai)  would  not 
hiive  fallen  if  the  child  had  let  it  alone.     So  in  Manj^au  v. 

(i)  Seo  ante,  p.  879. 

"  same  rule  of  care  and  diligence  on  his  part  in  avoiding  or  cBcaplnR  the 
consequence  of  the  neglect  of  others  which  Is  required  of  persons  of  full 
age  and  capacity  in  order  to  maintain  his  action  for  redrcHs." 

The  doctrine  of  IlartOcld  v.  Koper  has  been  somewhat  modified  in 
some  of  the  jurlsdictious  in  which  it  has  obtaiinnl. 

In  Marjhind,  for  example,  it  is  held  that  if  tlie  jury  llntl  that  the  ron- 
sequences  of  the  injury  could  have  been  avoided  by  tiie  exercise  of  ordi- 
nary care  on  the  part  of  the  defendant  a  child  noii  suijuri^  might  recover 
(Baltimore,  etc.,  R.  Co.  o.  McDonnell,  A'.i  Md.  535.  See  also  Mc.Mahono. 
Northern,  etc.,  R.  Co.,  39  Md.  439)  ;  in  Illinois,  that  where  the  negligence 
of  the  parent  was  slight  and  that  of  the  defendant  gross  In  comparison 
the  child  might  be  entitled  to  recover  for  injuries. —  Chicago  v.  Ilesing, 
83  III.  204. 

And  in  New  Yorlj  permitting  a  child  six  years  old  to  go  out  by  himself 
in  a  quiet  street  (Cosgrove  v.  Ogden,  49  N.  Y.  255),  or  permitting  a  child 
of  five  years  of  age  to  remain  alone  in  a  room  with  an  open  door  (Fulton  p. 
liallroad  Co.,  G4  N.  Y.  14),  is  not  conclusive  of  contributory  negligence 
on  the  part  of  the  parent. 

It  is  sufficient  to  say  of  the  doctrine  of  Hartfleld  v.  Roper,  that  It  is 
harsh  and  inhuman.  It  is  a  curious  commentary  on  the  doctrine  that 
the  law  as  pointed  out  (2  Tliompson  on  Neg.  118(5,  note,  and  see  Lawson 
Bail,  §  314;  Wharton,  §  313),  takes  greater  care  of  a  hog,  an  a,s8  and 
an  oyster  than  of  a  child  of  tender  years;  for  according  to  the  rule 
of  Davies  v.  Mann  (10  M.  &  W.  645),  if  a  donkey  is  carelessly  ex. 
posed  in  the  highway  and  injured  by  the  negligence  of  the  defendant 
the  owner  may  recover  damages;  and  where  oysters  are  negligently 
placed  in  a  bed,  damages  may  be  recovered  if  a  vessel  negligently  dis- 
turbs them  (Mayor  of  Colchester  v.  Brooke,  7  Q.  B.  377),  and  if  a  hog 
is  suffered  to  run  at  large  and  is  run  over  by  a  railroad  engineer  who, 
falls  to  exercise  ordinary  care  in  avoiding  it,  the  company  will  be 
liable.—  Kerwhacker  v.  Cleveland,  etc.,  R.  Co.,  3  Ohio  St.  172. 

Some  American  cases  regard  It  as  material  that  the  parent  or  guardian 
be  present  at  the  time  of  the  injury,  and  it  has  been  held  that  the 
presence  of  the  parent  or  custodian,  contributing  to  the  injury,  will  bar 
an  action  by  the  child.— Holly  o.  Boston  Gas  Co.,  8  Gray,  12.3;  Ohio, 
etc.,  R.  Co.  V.  Stratton,  78  111.  88;  Morrison  v.  Erie  R.  Co.,  5C  N.  Y.  302; 
Stlilson  V.  Hannibal  &  St.  Joseph  R.  Co.,  G7  Mo.  071;  Carter  r.  Towue, 
98  Mass.  567;  Kyne  v.  Wilmington  &  N.  R.  Co.  (Pel.),  1^3  Atl.  Rep.  922; 
Daube  V.  Tennlson,  154  111.  210;  39  N.  E.  Rep.  989;  Higgins  o.  Deeney, 
78Cal.  578;   21  Pac.  Rep.  428. 

In  those  States  where  the  rule  of  imputed  negligence  does  not  obt&la. 


518  CONTRIBUTORY   NEGLIGENCE. 

Atterton  (m),  the  [416]  machine  would  not  have  gone 
round  without  the  deliberate  act  of  the  children,  but  that 

(m)  Mangan  v.  Atterton,  L.  R.  1  Ex.  239;  35  L.  J.  Ex.  161;  see  ante,  p.  31. 

where  an  action  is  brought   by  the  parent  or  for  the  parent's  benefit, 

the  contributory  negligence  of  the  parent  will  of  course  be  a  defense. 

Bellefontaine,  etc.,  R.  Co.  v.  Snyder,  18  Ohio  St.  399;  24  Id.  670;  Pitts- 
burgh, etc.,  R.  Co.  V.  Vinings  Admr.,  27  Ind.  573;  Isabel  v.  Hannibal, 
etc.,  R.  Co.,  60  Mo.  475;  Williams  v.  Texas,  etc.,  R.  Co.,  60  Tex.  205; 
Baltimore,  etc.,  R.  Co.,  v.  Fryer,  30  Md.  47;  Smith  v.  Hestonville,  etc., 
R.  Co.,  92  Pa.  St.  450;  Spokane  &  P.  Ry.  Co.  v.  Holt  (Idaho),  40  Pac. 
Rep.  56;  Bamberger  v.  Citizens'  St.  R.  Co.  (Tenn.),  31  S.  W.  Rep,'163; 
Whitehead  u.  St.  Louis,  etc.,  R.  Co,,  22  Mo.  App.  60;  Alabama  G.  S.  R. 
Co.  V.  Dobbs,  101  Ala.  219;  12  So.  Rep.  770;  San  Antonio  &  Ry.  Co.  v. 
Vaughn,  5  Tex.  Civ.  App.  195;  23  S.  W.  Rep.  745. 

If  the  child  sues  by  its  father,  as  next  friend,  the  negligence  of  the 
father  in  whose  care  the  child  was  traveling  when  injured,  cannot  be 
imputed  to  the  latter,  so  as  to  defeat  recovery. —  Allen  v.  Texas  &  P.  Ky. 
Co.  (Tex.  Civ.  App.),  27  S.  W.  Rep.  943. 

Where  a  child  seven  years  of  age  had  been  in  the  habit  of  serving  con- 
ductors on  railroads  for  a  small  compensation  with  water  and  was  so 
employed  when  injured,  it  was  held  that  it  was  contributory  negligence 
per  se  for  plaintiff  to  permit  her  child  to  engage  in  so  dangerous  an  em- 
ployment and  that  a  nonsuit  was  properly  entered. — Pennsylvania  Co. 
W.James,  81  Pa.  St.  199;  see  Daly  v.  Norwich,  etc.,  R.  Co.,  26  Conn.  591; 
Albertson  u.  Keokuk,  etc.,  R.  Co.,  48  la.  492. 

And  upon  the  same  principle  the  contributory  negligence  of  the  child 
will  defeat  an  action  by  the  parent. —  Kennard  v.  Burton,  25  Me.  39;  Fitz- 
gerald V.  St.  Paul,  etc.,  R.  Co.,  29  Minn.  336;  Chicago,  etc.,  R.  Co.  v. 
Harney,  28  Ind.  28. 

Or  of  the  deceased  under  Lord  Campbell's  Act. —  Boland  v.  Missouri, 
etc.,  R.  Co.,  36  Mo.  484;  Wilds  v.  Hudson  River  R.  Co.,  24  N.  Y.  430. 

It  has  been  held  that  in  case  the  parent  is  poor  and  destitute  of  means 
for  safely  restraining  his  child,  it  may  be  a  question  for  the  jury  whether 
or  not  ordinary  care  was  used.— Pittsbursh,  etc.,  R.  Co.,  v.  Pearson,  72 
Pa.  St.  169;  Walters  v.  Chicago,  etc.,  R.  Co.,  41  la.  71;  Philadelphia,  etc., 
R.  Co.  V.  Long,  75  Pa.  St.  257;  Isabel  v.  Hannibal,  etc.,  R.  Co.,  60  Mo. 
483;  Rosenkranz  v.  Lindell  Ry.  Co.,  108  Mo.  9;  18  S.  W.  Rep.  890;  Slat- 
tery  v.  O'Connell,  153  Mass.  94;  26  N.  E.  Rep.  430;  Chicago  W.  D.  Ry.  Co. 
V.  Ryan,  31  111.  App.  621.     Contra,  Mayhew  v.  Burns,  103  Ind.  328. 

Children  Trespassing. —  Lynch  v.  Nurdin  has  been  generally  followed 
in  this  country. 

Illustrations  of  the  rule  are  found  in  cases  where  children  have  been 
injured  by  playing  with  dangerous  machinery  left  exposed  or  in  places 
likely  to  attract  their  curiosity. —  See  Porter  v.  Anheuser-Busch  Brewing 
Assoc,  24  Mo.  App.  1. 


(  ONTKIBUTOKY    XEOLIGENCE ClIILDItKN.  51*1 

cii-e  li.is  been  iloublcd  in      [117]      Clark  v.  Clmiubetfi  ( /j ), 
iiuil  it  id  said  that  the  defeudaut  was  guilty  of  negligence  in 

(n)  Clark  v.  Chambers,  47  1..  J.  i-i  It.  4;«t;  L.  U. ;;  y.  n.  U.  -2:1' ;  atiU,  \>.  31. 


Railroad  companies  have  been   held  liable  for  Injarles  to  chtldren 

caused  by  turu-tables  left  uiifiuarded  even  upon  their  own  premlHoH. — 
Railroad  Co.  v.  Stout,  17  Wall.  G57;  Evanslch  r.  liallroad  Co.,  67  Tex. 
12(;,  and  see  Koons  v.  St.  Louis,  etc.,  R.  Co.,  05  Mo.  51»2;  Kififu  v.  Mil- 
waukee, etc.,  K.  Co.,  21  Minn.  207;  Houston,  etc.,  K.  Co.  v.  Sirnpsun,  CO 
Tex.  103;  Kansas,  etc.,  R.  Co.  v.  Fitzsiramons,  22  Kan.  C8tJ;  Bir^e  o. 
Gardner,  19  Conn.  507;  St.  Louis,  etc.,  R.  Co.  v.  Ikll,  81  111.  7':;  N!i;,'el 
V.  The  Missouri  Pac.  R.  Co.,  75  Mo.  G53;  Dwyer  u.  Railroad  Co.,  12  Mo. 
App.  597;  A.&N.  R.  Co.  v.  Bailey,  11  Neb.  3;;2;  Gulf,  C,  etc.,  Ry.,Co.  r. 
Styron,  GO  Tex.  421;  Union  Pac.  Ry.  Co.  o.  Dunden,  37  Kan.  1;  U  Pac. 
Rep.  501;  Bridger  v.  Asheville  &  S.  R.  Co.,  25  S.  C.  24;  Walsh  v.  Fitch- 
bur^  R.  Co.,  78  Ilun,  1;  28  N.  Y.  S.  Rep.  1097.  See  Webb's  Pollocit  on 
Torts,  p.  585,  Ed.  n.;  and  40  C.  L.  J.  293.  But  see  Lane  c.  Atlantic 
WorliS  (109  Mass.  104;  111  Id.  I3C),  where  a  child  of  stven  years  was 
injured  by  a  Irucli  loaded  witb  castings  in  front  of  defendant's  foundry, 
and  it  was  held  that  the  defendant  was  not  liable;  and  St.  Louis,  etc., 
R.  Co.  V.  Bell  (81  111.  7G),  where  a  turn-table  was  kept  in  a  place  away 
from  a  public  street,  unguarded  and  latched,  but  not  locked,  and  a  boy 
nine  years  of  age,  while  turning  and  riding  upon  it  with  others  was  Injured, 
it  was  held  no  action  would  lie. 

The  owners  of  a  lumber  pile  in  an  unfenced  lot  have  been  held  liable 
for  an  injury  to  a  child  by  the  fall  of  the  boards  while  he  was  playing  about 
It. —  Branson  v.  Labrot,  81  Ky.  G38;  see  Cosgrove  v.  Ogden,  4'J  N.  Y.  255, 
and  compare  Vanderbeck  v.  Hendry,  34  N.  J.  L.  4G7.  See,  also,  Ilussey 
V.  Ryan,  G4  Md.  42G;  54  Am.  Rep.  772.  But  in  McGuiness  v.  Buller  (169 
Mass.  233;  34  N.  E.  Rep.  259),  it  was  held,  that  a  child  who  interferes 
with  marble  slabs  standing  on  private  property  cannot  recover  for 
injuries  received,  though  the  defendant  may  have  been  negligent  in  leav- 
ing the  slabs  where  he  did,  and  the  conduct  of  the  child  was  such  as 
might  have  been  expected  of  him.—  See  Briukley  C:ir  Works  &  MIg.  Co. 
V.  Cooper,  CO  Ark.  545;  31  S.  W.  Rep.  154;  Schmidt  v.  Kansas  City  I).  Co., 
90  Mo.  284;  Chicago,  K.  &  W.  R.  Co.  v.  Bockoven,  53  Kan.  279;  Union 
Pac.  Uy.  Co.  v.  McDonald,  152  U.  S.  262;  14  S.  Ct.  Rep.  G19. 

And  where  some  dynamite  was  left  exposed  in  a  shed  near  the  lan<l  of 
the  plaintifiE's  father,  and  the  plaintiff  took  a  package,  struck  it  with  a 
stone  and  shattered  his  hand,  the  defendant  was  held  liable.—  Powers  r. 
Uarlow,  53  Mich.  507. 

When  children  trespass  upon  railroad  property  it  Is  held  that  the  com- 
pany owes  them  a  greater  degree  of  care  than  adults;  and  they  are  only 
required  to  exercise  such  care  and  judgment  as  may  reasonably  be  ex- 
pected from  those  of  their  age.  —  Fitzpairick  s.  Fitchburg  R.  Co.,  lid 
Mass.  13;  Byrne  ».  New  York,  etc.,  R.  Co.,  83  N.  Y.  C20;  Rockford,  etc., 


520  CONTEIBUTORY  NEGLIGENCE. 

leaving  the  machine  uu-  [418]  guarded,  which  would 
bring  the  case  within  Lynch  v.  Nurdin. 

R.  Co.  V.  Delaney,  82  111.  198;  Meibus  v.  Dodge,  38  Wis.  300;  Johnson  v. 
Chicago,  etc.,  R.  Co.,  56  Wis.  274;  Philadelphia,  etc.,  R.  Co.  v.  Spearen, 
47  Pa.  St.  300;  Pennsylvania  R.  Co.  v.  Lewis,  79  Pa.  St.  33;  Barley  v. 
Chicago,  etc.,  R.  Co.,  4  Biss.  430;  Isabel  v.  Hannibal,  etc.,  R.  Co.,  60 
Mo.  475;  Gun  v.  Ohio  River  R.  Co.,  37  W.  Va.  421;  16  S.  E.  Rep.  628, 
following  36  W.  Va.  165;  14  S.  E.  Rep.  465;  San  Antonio  St.  Ry.  Co.  v. 
Mechler  (Texas),  30  S.  W.  Rep.  899;  Barnes  v.  Shreveport  City  B. 
Co.  (La.),  17  So.  Rep.  782;  Thomas  v.  Chicago,  etc.,  Ry.  Co.  (Iowa), 
61  N.  W.  Rep.  967;  Payne  v.  Chicago  &  A.  R.  Co.  (Mo.),  30  S.  W.  Rep. 
148;  Galveston  City  R.  Co.  v.  Hewitt,  67  Tex,  473;  3  S,  W.  Rep.  705; 
McCarthy  v.  Cass  Avenue  &  F.  G.  Ry.  Co.,  92  Mo.  536;  4  S.  W.  Rep.  516; 
Hays  V.  Gainesville  St.  Ry.  Co.,  70  Tex.  602;  8  S.  W.  Rep.  491;  McGuire 
V.  Chicago,  etc.,  Ry.  Co.,  37  Fed.  Rep.  54;  Levy  v.  Dry  Dock,  etc.,  R. 
Co.,  58  Hun,  610;  12  N.  Y.  S.  Rep.  485;  Kentucky  Hotel  Co.  v.  Camp 
(Ky.),  30  S.  W.  Rep.  1010;  Springfield  Consolidated  Ry.  Co.  v.  Welsh,  155 
111.  511;  40  N.  E.  Rep.  1034;  Pierce??.  Couners,  37  Pac.  Rep.  721;  Indian- 
apolis, P.,  etc.,  Ry.  Co.  v.  Pitzer,  109  Ind.  179;  58  Am.  Rep.  387;  Keyser 
V.  Chicago,  etc.,  Ry.  Co.j  56  Mich.  559;  Douahoe  v.  Wabash,  etc.,  Ry. 
Co.,  83  Mo.  543;  Bridger  v.  Ashville,  etc.,  R.  Co.,  27  S.  C.  456;  3  S.  E. 
Rep.  860;  Kansas  Pac.  Ry.  Co.  v.  Whipple,  39  Kan.  531;  18  Pac.  Rep. 
730;  Western  &  A.  R,  Co.  v.  Young,  81  Ga.  397;  7  S.  E.  Rep.  912;  83  Ga. 
512;  10  S.  E.  Rep.  197;  Swift  v.  Staten  Island  R.  T.  R.  Co.,  123  N.  Y. 
645;  25  N.  E.  Rep.  378;  Splllane  v.  Missouri  Pac.  Ry.  Co.,  Ill  Mo.  565; 
20  S.  W.  Rep.  293;  Citizens'  St.  R.  Co.  v.  Stoddard,  10  Ind.  App.  287; 
37  N.  E.  Rep.  723;  Schmitz  v.  St.  Louis,  etc.,  Ry.  Co.,  119  Mo.  256;  24 
S.  W.  Rep.  472;  Chicago,  B.  &  Q.  R,  Co.  v.  Grablin,  38  Neb.  90;  56  N.  W. 
Rep.  796;  Omaha  &  R.  V.  Ry.  Co.  v.  Morgan  (40  Neb.  604),  59  N.  W.  Rep. 
81;  ^iraldo  v.  Coney  Island  &  B.  R.  Co.,  62  Hun,  620;  16  N.  Y.  S.  Rep. 
774;  Sirutzell  v.  St.  Paul  City  Ry.  Co.,  47  Minn.  543;  50  N.  W.  Rep.  690; 
Barre  v.  Reading  City  Pass.  Ry.  Co.,  155  Pa.  St.  170;  26  Atl.  Rep.  99; 
Wynn  v.  City  &  S.  Ry.  Co.,  91  Ga.  344;  17  S.  E.  Rep.  649;  Taylor  v.  South 
Covington  &  C.  St.  Ry.  Co.  (Ky.),  20  S.  W.  Rep.  275. 

They  can  not,  however,  make  a  playground  of  railroad  property.  — 
Baltimore,  etc.,  R.  Co.  v.  Schwindling,  101  Pa.  St.  258;  Morrissey  t>. 
Eastern  R.  Co.,  126  Mass.  377;  Atchison,  etc.,  R.  Co.  v.  Smith,  28  Kan. 
541;  Chicago,  etc.,  R.  Co.,  46  Mich.  504;  St.  Louis,  etc.,  R.  Co.  v.  Bell, 
81  111.  76;  Masser  v.  Chicago,  etc.,  R.  Co.,  68  la.  602;  27  N.  W.  Rep.  776; 
Mitchell  t?.  Tacoma  Ry.  &  M.  Co.,  9  Wash.  St.  120;  37  Pac.  Rep.  341, 

Playing  in  the  Street.  —  Whether  playing  in  the  street  or  highway  is 
contributory  negligence  on  the  part  of  children,  so  as  to  bar  an  action  for 
injuries,  is  disputed.  Some  courts  hold  that  it  is  not  (Philadelphia,  etc., 
R.  Co.  V.  Long,  75  Pa.  St.  257;  Pittsburgh,  etc.,  R.  Co.  v.  Pearson,  72  Pa. 
St.  169;  McGuire  v.  Spence,  91  N.  Y.  303;  McGary  v.  Loomis,  63  N.  Y. 
104;  Varney  v.  Manchester,  58  N.  II.  430;  Keefe  v.  Chicago,  114  111.  222; 


CONTRIBUTOUY    NEGLIGENCE CHILUHKN.  .')21 

As  to  contributory  negligence  uiulcr  the  EiiiploytT^'  Lia- 
bility Act,  see  aute^  225-251. 


18  C.  li.  N.  26;  21  O.  L.  J.  263;  Tobin  v.  Ml88oiirl  Pac.  Ry.  Co.  (Mo.), 
18  S.  W.  Rep.  9%;  Mitchell  v.  Tacoraa  Ry.  &  M.  Co.,  <J  WaHh.  Si.  120;  87 
Pac.  Ri'p.  3U;  Birkett  v.  Knickerbocker  Ice  Co.,  41  Hun,  404;  110  N.  Y. 
604;  18  N.  K.  Rep.  108,  and  others  that  it  Is.  —  Slin^on  r.  City  o(  (lar- 
tliner,  43  Me.  248;  Tlghe  v.  Lowell,  119  Mass.  472;  North  Hudson  County 
Ry.  Co.  V.  Flana-an  (N.  J.  L.),  32  All.  Rep.  216. 

In  Keefe  v.  City  of  Chicago,  supra,  it  -vvas  held  that  a  child  playing 
opon  a  slilewalk  (rolling  his  hoop)  and. injured  by  reason  of  Its  defective 
condition,  Is  not,  thereby,  guilty  of  contributory  negligence.  The  court 
say:  — 

"  A  sidewalk  is  for  the  passage  of  persons  only,  and  we  have  not  had  In 
contemplation  any  case  of  it  otherwise.  Whether  it  be  passed  over  lor 
business  or  for  pleasure,  or  merely  to  gratify  Idle  curiosity,  we  think  the 
use  Is  lawful.  A  child  may  lawfully  be  upon  the  sidewalk  for  ph  :i8ure 
only,  that  is  to  say,  for  play,  and  the  city  owes  the  same  duty  to  have  the 
sldi'walk  In  a  reasonably  safe  state  of  repair  in  respect  of  it  that  It  does 
In  respect  of  those  who  are  on  the  sidewalk  passing  to  or  returning  from 
their  places  of  business  or  abode.  It  may  be  true  that  the  child  will  be 
less  careful  in  its  mode  of  using  the  sidewalk  while  playing  than  the  busi- 
ness man  will  be  while  traveling  to  or  from  his  place  of  businetiS  or 
abode;  but  this  belongs  to  the  domain  of  fact,  and  not  to  that  of  law.  It 
may  be  so  In  most  cases,  it  is  not  inevitably  so  In  all  cases.  It  Is  for  the 
jury,  not  the  court,  to  say  "what,  in  a  given  case,  was  the  conduct  of  the 
parlies.  Our  attention  is  called  to  an  expression  used  In  City  of  Chicago 
r.  Starr  (42  111.  177),  where  it  is  said;  '  For  it  is  to  be  borne  in  mind  that 
It  Is  not  the  duty  of  the  city  of  Chicago  to  make  its  streets  a  safe  play- 
ground for  children.  That  is  not  the  purpose  for  which  streets  are  de- 
signed.* This  expression  does  not  occur  in  the  statement  of  a  legal  prin- 
ciple, nor  in  the  argument  of  a  legal  proposition,  but  It  occurs  in  an 
argument  upon  a  question  of  fact  purely,  namely,  whether,  In  that  case, 
the  intestate  was  guilty  of  that  degree  of  contrlbntive  ne;:ligence  which 
precluded  a  recovery.  At  that  time  this  court  reviewed  on  questions  of 
lact  as  well  as  of  law,  and  often  these  questions  were  so  Intermlii^hd  In 
the  discussion  that  it  required  some  effort  and  care  to  tiistln^iuish  be- 
tween them.  It  was,  in  the  case  referred  to,  assumed  as  a  matter  of  fact 
that  children,  in  playing,  will  be  more  careless  than  persons  who  are  sim- 
ply passing  along.  And  the  only  legal  proposition  is  one  thai  Is  Implied 
in  the  argument;  and  that  is  that  the  measure  of  duty  of  the  city  In  re- 
gard to  its  streets,  is  limited  by  the  necessity  of  the  ordinary  mo<l« «  of 
traveling  or  passing  along  the  streets.  If  they  were  not  kept  op  to  this 
requirement,  and  children  in  playing  did  not  subject  them  to  greater  bur- 
dens, or  essentially  different  uses,  certainly  it  was  not  contemplated  that 
the  fact  of  the  children  being  at  pl:iy  should  bar  a  recovery  for  InjurlM 
resulting  from  the  conditi  m  of  the  streets." 


[419]     CHAPTER  VI. 

PRESUJIPTIONS    OF    CARE    OR    NEGLIGENCE. 

Res  ipsa  Loquitur. 

There  is  a  presumption  in  favor  of  all  persons  that  they 
will  exercise  care  in  the  performance  of  their  duties.  It  is 
presumed  in  favor  of  the  defendant ;  and,  therefore,  the 
plaintiff  is  in  all  cases  bound  to  give  evidence  of  negligence. 
It  is  also  presumed  in  favor  of  the  plaintiff,  and  if  the  de- 
fendant wishes  to  rebut  that  presumption  he  must  give 
evidence  of  the  plaintiff's  negligence,  and,  in  order  to  de- 
feat the  plaintiff's  right  of  action,  he  must  go  further  and 
show  that  the  plaintiff's  negligence  was  **  contributory  neg- 
ligence "  in  law,  see  ante^  Chapter  V. 

Persons  have  a  right  to  proceed  to  the  performance  of 
their  duties  upon  the  presumption  that  others  will  exercise 
ordinary  care  in  the  performance  of  theirs,  and  unless  they 
have  some  reasonable  ground  for  supposing  that  others  are 
not  going  to  exercise  care,  or  are  engaged  in  something 
requiring  additional  precaution,  they  are  not  guilty  of  neg- 
ligence in  omitting  to  provide  against  such  unforeseen 
danger  {a). 

It  has  already  been  stated,  that  in  actions  of  negligence 
(as  indeed  in  all  actions)  the  plaintiff  must  give  some 
proof  of  his  case  beyond  a  mere  scintilla  of  evidence,  and 
if  he  does  not,  it  is  the  duty  of  the  judge  to  direct  a  non- 
suit (6).  The  question  of  what  is  sufficient  evidence  to  go 
to  the  jury  is  one  for  the  judge  in  the  particular  case 
before  hira  ;  but  there  are  a  class  of  cases  in  which  there 


(o)  Daniel  v.  Met.    Ry.    Co.,  L.  R.  5  (6)  Ante,  p.  24,  note  (e). 

Eng.  &  Ir.  App.  45. 

(522) 


RES    IPSA    LOyUITUU. 


5J3 


has  heon  no  direct  evidence  of  any  particular  act  of  nejrli- 
irenco,  beyond  the  mere  fact  that  somethinj;  unusual  ha.s 
[420]  happened,  which  has  caused  the  injury ;  and  upon 
the  maxim,  or  rather  phrase,  "res  ipsa  luf/ui(ur,''  it  has 
i)ccn  held  that  there  is  evidence  of  ne^li<,'encc.  As  th'- 
phrase  inii)orts,  there  must  be  somethinir  in  the  facts  whit-h 
speaks  for  itself,  and  therefore  each  case  will  depend  upon 
its  own  facts,  and  it  will  be  difficult  to  lay  down  any 
guiding  principles.  It  may,  perhaps,  be  safely  stated  that 
where  a  certain  course  of  action  has  been  pursued  by  any 
person  without  injury  to  others,  and  he,  ui)on  ehangini; 
that  course,  injures  another,  the  thing  (unexplained)  speaks 
for  itself  that  such  person  has  been  negligent  ('•);or  if 
something  unusual  happens  with  respect  to  the  defendant's 
property,  or  something  over  which  he  has  the  control  which 
injures  the  plaintiff,  and  the  natural  inference  on  tho 
evidence  is  that  the  unusual  occurrence  is  owing  to  tho 
defendant's  act,  the  occurrence  being  unusual  is  said  (in 
the  absence  of  explanation)  to  speak  for  itself  ((/)  tliat 
each  act  was  necli^ent. 


(c)  Kearney  r.  L.  B.  &  S.  C.  Ry.,  L. 
B.  C  Q.  U.  75? ;  40  L.  J.  Q.  B.  285 ;  Byrne  v. 
Boadle,  2  H.  &  C.  722;  33  L.  J.  Ex.  13; 
Scott  r.  London  Dock  Co.,  34  L.  J.  Ex. 
17;  3  H.  &  C.  50;  per  I'lgolt,  B.  (bags  of 
SDKar  falling  from  crane);  M'Muhon  v. 
DavldBon,  12  Minn.  357  (barsting  of  a 
boiler  on  a  Btcanier) 

(d)  Brlggs  f.  Oliver,  35  L.  J.  Ex.  163 
(packing  case  propped  against  wall) ; 
Czech  V.  General  Steam  Navigation  Co., 
L.  R.  3  C.  P.  17  (oil  on  vessel  getting  Into 
cargo) ;  Moffat  v.  Bateman,  L.  It.  3  P.  C. 
113  (bolt  pin  of  carriage  giving  way, 
plaintiff  invited  Into  defendant's  car- 
rlRge).  It  was  observed  In  this  case  that 
there  Is  nothing  unusual  lu  carriage  ac- 
cident per  se  as  there  Is  in  tho  falling  of 
bags  of  sugar  as  In  Scott  v.  London 
Docks,  OTipn/ /.Simpson  v.  L.  G.  Omnibus 
Co.,  L.  U.  8  C.  P.  390;  42  L.  J.  C.  P.  112 
(omnibus  horse  kicking,  unudual  occur- 
rence) ;  Mullen  r.  St.  John,  57  N.  Y.  567 
(fall  01  building  IlIo  Btree'.) ;  Stokes  v. 


Saltonstall,  13  Peters,  181  (stage  coach 
upset);  and  also  Christie  v.  Griggs,  3 
Cami).  7'.l,  per  Lord  ManHflcld,<r</ </(i<ere, 
if  a  carriage  accident  Is  not  unuHual, 
why  should  a  stage  coach  accident  l>o 
so;  and  see  Tcmplcmnn  r.  Ilaydon,  13 
C.  B.  507;  Welsh  v.  I>awrence,  2  Chit. 
262;  Doyle  f.  Wragg,  1  F.  *  F.  7.  A  col- 
lision between  two  trains  under  the  con- 
trol of  the  same  coinpiiny,  Skinner  r.  L^ 
B.  &  S.  C.  Uy.  Co  ,  5  Ksch.  7s7 ;  Cari'OO 
r.  L.  &  B.  Uy.  Co.,  5  y.  B.  751 ;  Iron  Ky. 
Co»r.  Mowery,  [36  0hio  St.  418J  ;3S  Arot-r. 
Rep.  6'.»7;  running  off  the  line,  DawiMjn 
r.  M.  S.  *  L.  Uy.  Co.,  5  L.  T.  6!'2;  Bird  i-. 
G.  N.  Uy.  Co..  28  L.  J  Kx.  3;  Kl.innory  c. 
W.  A  l!  Uy.  Co.,  II  Ir.  U.  C.  I-  30;  lliu- 
burgh  Uy.  Co.  v.  Williams,  74  Ind.  4«i; 
George  r.  St.  Louis  Uy.  Co.,  34  Ark.  613; 
are;»ri»ii<«/'<'ie  evhlcncc  of  ncgllgenwj; 
Philadelphia  Uy.  Co.  r.  Anderson,  91 
Pa.  St.  :151;  39  Auicr.  Rep.  S«7  (wasblnR 
away  of  an  einbankmonl),  Dougherty  r. 
Missouri  Uy.  Co.,9  Mo.  App.  476  (ratlv.ay 


524  PRESUMPTION   OF   CARE   OR  NEGLIGENCE. 

[421]  Where  upon  the  other  hand,  something  unusual 
occurs  which  injures  the  plaintiff,  but  such  unusual  occur- 
rence is  not  even  inferentiallj  the  result  of  any  unusual 
act  of  the  defendant,  and  the  defendant  has,  so  far  as  he 
is  concerned,  been  pursuing  his  usual  course,  which  has 
heretofore  been  done  in  safety,  then  the  unusual  occurrence 
is  what  is  called  an  accident,  or  is  perhaps  the  fault  of  the 
plaintiff  himself  (e).  Care  should  be  taken  here  to  dis- 
tinguish those  cases  where  an  accident  happens  through  the 
neglect  of  the  defendant,  although  things  are  allowed  to  go 
on  in  their  usual  course  in  one  sense,  that  is  to  say,  they 
are  left  to  get  out  of  order  by  neglect;  but  this  is  in  truth  a 
distinct  act  of  negligence  in  omitting  to  examine  and  repair, 
and  the  accident  is  caused  by  an  unusual  circumstance  in- 
duced by  the  act  of  the  defendant.  Such  a  case  is  that  of 
Webb  V.  Rennie,  4  F.  &  F.  608,  and  probably  some  of  the 
cases  in  the  note,  supra,  as  to  carriage  accidents  are  ex- 
plainable on  this  ground. 

It  is  clear  that  the  cause  of  the  accident  must  be  con- 
nected with  the  defendant  either  by  direct  evidence  that 
it  is  his  act,  or  that  it  is  under  his  control,  before  it  can 
be  presumed  that  he  has  been  negligent  (/*).     It  also  seems 

carriage  starting  with  a  jerk).    See  also  Exchequer,  and  see  judgment  of  Pol- 

the    cases    ante,  Ch.  III.,  s.  8,  Carriers.  lock,  B.,in  Court  below,  34  L.  T.  N.  8. 

So  the   giving  away  of  any  part  of  the  544. 

line  la  prima  facie  evidence,  and  con-  (/)  Hlggs  v.  Maynard,  12  Jnr.  N.  S. 

elusive  unless  rebutted,  G.  W.  Ry.  Co.  of  705    (ladder    in    defendant's  workshop 

Canada  47.    Fawcett,  1  Moo.  P.  C.  N.  S.  broke  a  window;  held  that  plaintiff  must 

101.  show  that  ladder  was  under  defendant's 

(c)  See  the  Railway  Cases,  ante,  s.  8,  control),  and  see  Welfare  v.  L.  B.  &  S. 

Carriers;   and    see  Abbott  v.  Freeman,  C.  Ry.,  L.  R.  4  Q.  B.   693,  where  Court 

35  L.  1.  N.  S.  783,  reversing  judgment  of  would  not  presume  that  a  man  on  a  roof 

(fi)  Accidents.— Stfcffen  v.  Chicago  &  N.  W.  Ey.  Co.,  46  Wis.  259;  60 
N.  W.  Rep.  348;  Millie  v.  Manhattan  Ry.  Co.,  25  N.  Y.  S.  Rep.  753;  6 
Misc.  Rep.  301;  Bryraer  v.  Southern  Pac.  Co.,  90  Cal.  496;  27  Pac.  Rep.  ' 
371;  Grant  u.  Union  Pac.  Ry.  Co.,  45  Fed.  Rep.  673;  Chicago,  R.  I.  &  P- 
Ry.  Co.  V.  Becker,  38  III.  App.  523;  Cosulich  v.  Standard  Oil  Co.,  122  N. 
Y.  118;  25  N.  E.  Rep.  259;  Wabash,  St.  L.  &P.  Ry.  Co.  v.  Loclie,  112  Ind. 
404;  14  N.  E.  Rep.  391;  Allison  Mfg.  Co.  v.  McCormicli,  118  Pa.  St.  519; 
12  Atl.  Rep.  273;  Robinson  v.  Simpson,  8  Houst.  398;  32  Atl.  Rep.  287. 


KES  irSA  LOQUITUU.  52.'» 

clear  that  the  phrase  cannot  apply  to  cases  where  it  it*  open 
to  doul)t  whothcr  the  plaintiff  has  not  nef;lecteU  Home  duty 
(levolviiip;  upon  hiui  {(/).  Where  there  \s  no  duty  u|)«in  the 
plaintiff,  or  where  the  duty  which  Iw  has  to  perform  has 
[422]  hcen  performed  by  him,  it  is  clear  that  the  nt'i^li- 
jicnce  of  the  plaintiff  is  out  of  the  question;  and,  if  the 
accident  is  connected  witli  the  defendant,  the  (luostion 
whether  the  phrase  res  **  ipsa  loquitur''  applies  or  not, 
becomes  a  simple  question  of  common  sense. 

A  very  good  illustration  upon  this  point  is  j)ut  by 
Willcs,  J.,  in  giving  judgment  (/<)  in  the  case  of  Cznh  v. 
The  General  Steam  Navigation  Co. :  *'  If  a  shipment  of 
sugar  took  jilacc  under  a  bill  of  lading,  such  as  the  present 
one,  antl  it  was  proved  that  the  sugar  was  sound  wlieu  put 
on  board,  and  had  become  converted  into  syrup  before  the 
cud  of  the  voyage,  if  that  was  put  as  an  abstract  case  I 
think  the  ship-owner  would  not  be  liable,  beciiuse  there  may 
have  been  storms  which  occasioned  the  injury,  without  any 
want  of  care  on  the  part  of  the  captain  or  crew;  the  injury 
alone,  therefore,  would  be  no  evidence  of  negligence  on 
their  part.  But  if  it  was  proved  that  the  sugar  was 
damaged  by  fresh  water,  then  there  would  bo  a  strong 
probability  that  the  hatches  had  been  negligently  left  open, 
and  the  rain  had  so  come  in  and  done  the  injury,  and, 
though  it  would  be  possible  tiiat  some  one  had  willfully 
poared  fresh  water  down  into  the  hold,  this  would  be  so 
improbable,  that  a  jury  would  be  justified  in  fin<ling  tliat 
the  injury  had  been  occasioned  by  negligence  in  the 
management  of  the  ship  (i). 

wa»  in  the  employ  of   the  owner.    Sec  of  Cotton  r.  Wood,  20   I,.  J.  V.    V.   SB, 

U»U  case, port,  p.  429.    Smith  r.  «.  E.  Ry.  where  there  were  rcclprornl  duties  upon 

Co.,  I,.  U.  2  C.  P.  )0  (doK  not  under  the  the    foot    paHSoDKerii    to    look    out  for 

control  of  the  defendiinte  got  upon  the  vehicles  and  for  driver*  to  look  out  for 

platform  and  bit  the  plaintiff) ;  Wright  foot     passengers.       Sec    Hammark    r. 

V.  Midland  Uy.  Co.,  L.  U.  8  Ex.  137  :  42  L.  White,  H  C.  B.  N.  8.  5«;  SI  L.  J.  C.  P. 

J.  Ex.  X9  (driver  of  North  Eastern  train  1». 

negligently   disregarding    Midland  sig-  (A)  Czech  r.  General  Steam  N«t1««- 

na]8).  tlon  Co..  L.  It.  3  ('.  P.  18;  37  L.  J.  C.  P.  ^. 

(p)  This  would  appear  from  the  case  (0  See  also  p«r  Cockburn,  C.  J.,  In 


526  PRESU3IPTION    OF    CARE    OK    NEGLIGENCE. 

The  mere  fact  of  a  man  driving  on  the  wrong  side  of  the 
road  is,  it  seems,  no  evidence  of  negligence  in  his  having  run 
over  a  foot  passenger  (k),  but  probably  driving  on  the 
wrong  side  \s  prima  facie  evidence  in  case  of  collision  with 
another  vehicle ;  and  the  reason  is,  that  in  the  latter  case 
the  other  vehicle  is  on  the  7'ight  side,  which  seems  to 
[423]  negative  any  negligence  on  the  part  of  the  driver, 
whereas  in  the  case  of  the  foot  passenger  there  is  nothing 
to  show  whether  he  was    negligent  or  not  (Z). 

Of  course  when  the  circumstances  are  explained  the  rule 
does  not  apply;  so  that  where  the  injury  arises  from  cir- 
cumstances over  which  the  defendant  has  no  control,  and 
he  has  exercised  a  proper  amount  of  care  but  to  no  effect, 
he  is  not  liable  in  an  action  of  negligence  (??z). 

The  mere  fact  of  an  accident  is  not,  however,  evidence 
of  negligence  (n). 

*'  Where  a  person  desires  to  have  the  roof  of  a  building 
repaired  he  employs  some  one  not  only  to  repair  the  roof 

Kearney  r.  L.  B.  &  S.  C.  Ry.,  supra,  footpath  shown  to  have  done  his  best  to 

where  he  suggested  it  is  possible  but  not  keep  off);  Latch  v.  Rumner  Ry.  Co.,  27 

probable  that  the  brick  might  have  fallen  L.J.  Ex.  155  (train  off  line;  act  of  stran- 

out  of  the  railway  arch  through  change  ger) ;  Waketnan  v.  Robinson,  1  Blng.  213 

of  temperature.— [See,  The  Samuel  E.  (defendant's  horse  in  gig  frightened  by 

Spring,  29  Fed.  Rep.  397.]  butcher's   cart);  Gibbons   v.  Pepper,  1 

(i)  Lloyd  V.  Ogleby,5  C.  B.  N.  S.  667.  Ld.    Raym.    38    (horse    frightened    by 

The  case  scarcely  seems  to  decide  this  thunder) ;  North  v.  Smith,  10  C.  B .  N.  8. 

satisfactorily.     See     also     Chaplin    v.  575;  contra  (if  spur  be  used);  ManzonI 

Hawse,  3  C.  &.  P.  554.  v.   Douglas,  6  Q.  B.  D.   145  (horse  and 

(Z)  We  have  seen,  ante,  that  a  man  brougham  on   footway  bolted  without 

driving    on  the   wrong  side   is    bound  cause,  man  did  his  best), 
to  use  more  than  ordinary  care.     [Ken-  (n)  Hammack  v.  White,  11  C.  B.  N.  S. 

nai-d   V.  Burton,  25  Me.  39;  Brooks   v.  676;  Bird  v.  Gt.  Northern  Ry.,  28  L.  J.Ex. 

Hart,  14  N.  H.  307;  Earing  v.  Lanslngh,  7  3;  Welfare  v.  Brighton  Ry.  Co.,  L.  R.  4 

Wend.  185.]  Q.  b.  998  (roll  of   zinc  fell   tlirough  a 

(m)  nammack  v.  White,  11  C.  B.  N.  S.  roof) ;  Smith  v.  G.  E.  Ry.  Co.,  ante. 
588;  31  L.  J.  C.  P.  129  (man  on  horse  on 

Res  Ipsa  Loquittir.  —  A  distinction  is  drawn  as  to  presumptions  of 
negligence  between  cases  resting  in  contract  and  those  not  resting  in 
contract.— See  Article,  Res  Ipsa  Loquitur,  by  Judge  Seymour  D.  Thomp- 
son, 10  C.  L.  J.  261;  2  Thomp.  on  Neg.  1220,  and  Whart.  on  Neg.,  §§  421 
and  422. 

In  those  resting  in  contract,  the  mere  happening  of  the  accident  will 


ICKS    Il-SA    LOQIITIU.  427 

but  to  see  to  its  condition;  und  if  ho  employs  ix  conjpetcnt 
person,  the  business    of  tbut  person  upon   proceeding  to 

be  privM  facie  evidence  of  a  breach  of  contract  withoat  farther  proof; 
while  In  those  not  resllnji  in  contract,  "  it  must  not  only  apjK-ar  that  the 
accident  happeueil,  but  the  surrounilinp;  circuniHtances  must  be  »uch  aH 
to  raise  the  presumption  that  it  happened  in  consequeme  of  a  failure  of 
duty  on  the  part  of  defendant  towards  the  plaintiff."  —  Article,  lie* 
Ipsa  Loquitur,  10  C.  L.  J.  2G1. 

"  All  courts  agree  that,  where  contractual  relation  exlslH  between 
the  parties,  as  in  cases  of  common  carriers,  proof  of  the  accident  carries 
with  it  the  presumption  of  negligence,  and  makes  a  prima  /arir  case. 
This  proposition  is  elementary  and  uncontradicted. — Judsou  v.  Giant 
Powder  Co.  (Cal.),  40  Pac.  Kep.  1020;  41  C.  L.  J.  244.  See  Carter  r. 
Kansas  City  Cable  Ky.  Co.,  42  Fed.  Rep.  37;  Dampmau  v.  Pennsylvania 
R.  Co.,  IGG  Pa.  St.  520;  31  At!.  Kep.,  p.  244. 

Thus,  when  an  accident  happens  to  a  passenger  on  a  railroad  by  rea- 
son of  the  defective  condition  of  appliances,  there  is  a  ;)nma  facie  evi- 
dence from  which  the  jury  may  infer  negligence. — Baltimore,  etc.,  H.  Co. 
V.  Noell's  Adrar.,  32  Gratt.  394;  Sawyer  v.  Hannibal,  etc.,  K.  Co.,  37  Mo. 
240;  Curtis  v.  Rochester,  etc.,  R.  Co.,  18  N.  Y.  434;  Delaware,  etc.,  K. 
Co.  tj.  Napheys,  90  Pa.  St.  135;  Cleveland,  C.  etc.,  R.  Co.  v.  Newell,  104 
Ind.  264;  East  Tenn.,  V.  &  G.  R.  v.  Maloy,  77  Ga.  237;  2  S.E.  Rep.y41. 

As  where  a  passenger  is  injured  by  the  breaking  down  of  a  coach. — 
Toledo,  etc.,  R.  Co.  v.  Baggs,  85  111.  80. 

By  a  car  being  thrown  from  the  track. —  Pittsburgh,  etc.,  R.  Co.  r. 
Williams,  74  Ind.  402;  Cleveland,  etc.,  R.  Co.  v.  Newell,  104  In.l.  2i;4;  3 
N.  E.  Rep.  830;  Ilipsluy  v.  Kansas  City,  etc.,  R.  Co.,  88  Mo.  348;  Central 
K.  Co.  V.  Sanders,  73  Ga.  513. 

By  the  falling  of  a  lamp-shade  from  the  ceiling  of  a  passenger  car. — 
White  V.  Boston  &   A.  R.  Co.,  114  Mass.  404. 

By  a  collision  of  trains. —  New  Orleans,  etc.,  R.  Co.  v.  Allbrltton,  38 
Miss.  242.     See  Wilkerson  v.  Corrigan  C.  St.  Ry.  Co.,  26  Mo.  App.   144. 

By  the  upsetting  of  a  stage  coach.  —  Wall  r.  Livezay,  0  Colo.  4*15; 
Boyce  v.  California  Stage  Co.,  25  Cal.  4G0;  McKinney  o.  Nell,  1  McLean, 
640;  Stokes  c.  Saltonstall,  13  Pet.  181;  Payne  v.  Ilalstead,  44  111.  App. 
»7;  Sanderson  v.  Frazier,  8  Colo.  79;  54  Am.  Rep.  544. 

The  explosion  of  a  boiler.— The  Reliance,  4  Woods,  420;  Robinson  r. 
New  York  Cent.  R.  Co.,  20  Blatchf.  338;  The  Sidney,  28  Fed.  Rep.  U'J. 

The  overturning  of  a  stage  sleigh. —  Ryan  v.  Gilmer,  3  .Mont.  517. 

And  where  a  telegraph  company  undertakes  to  transmit  a  message  for 
the  sender,  and  either  fails  to  do  so,  or  transmits  It  Incorrectly,  proof  of 
the  contract  and  its  non-performance  are  all  that  Is  required  to  charge 
the  company  with  liability.— Bartlett  v.  Western  Union  Tel.  Co.,  C'2  .Me. 
809;  Tyler  ».  Western  Union  Tel.  Co.,  CO  111.  440. 

The  rule  is  applied  in  those  States  where  statutes  have  been  enacted 


528  PRESUMPTION    OF   CARE    OR   NEGLIGENCE. 

[424]  repair  the  roof  is  to  look  at  its  condition,  and  to 
see  how  far  it  will  support  him  or  his  workmen  in  doing 

making  the  fact  of  killing  or  injuring  cattle  prima  facie  evidence  of  negli- 
gence.—  See  Atchison,  etc.,  K.  Co.  v.  Walton  (New  Mexico),  21  Rep. 
627;  McCoy  v.  Cal.  P.  R.  Co.,  40  Cal.  534;  Banner  v.  South  Carolina  Ry. 
Co.,  4  Rich.  329;  Missouri  Pac.  Ry.  Co.  v.  Scott,  4  Tex.  Civ.  App.  76;  26 
S.  W.  Rep.  239. 

In  some  other  States  the  fact  of  killing  or  injury  does  not  constitute 
any  presumption  of  negligence. —  Id.;  Lyndsay  v.  Conn.,  etc.,  R.  Co.,  27 
Vt.  643;  Chicago,  etc.,  R.  Co,  v.  Patchin,  16  111.  198;  Great  Western  R. 
Co.  V.  Morthland,  30  lb.  451;  Schneir  v.  C,  R.  I.  and  P.  R.  Co.,  40  la. 
337;  Indianapolis,  etc.,  R.  Co.  v.  Means,  14  Ind.  30;  New  Orleans  R. 
Co.  V.  Enochs,  42  Miss.  603;  Mobile,  etc.,  R.  Co.  ■;;.  Hudson,  60  lb.  672; 
Brown  «.  Hannibal,  etc.,  Ry.  Co.,  33  Mo.  309;  Scott  w.  Wilmington  R. 
Co.,  5  Jones  L.  432;  Walsh  v.  Virginia,  etc.,  R.  Co.,  8  Nev.  Ill;  Flattes 
V.  Chicago,  etc.,  R.  Co.,  35  la.  191 ;  Kentucky,  etc.,  R.  Co.  v.  Talbot, 
78  Ky.  621;  Whittier  v.  C.  M.  and  St.  P.  R.  Co.,  26  Minn.  484;  Little 
Rock,  etc.,  R.  Co.  v.  Henson,  39  Ark.  413;  Little  Rock,  etc.,  R.  Co.  v. 
HoUand,  40  lb.  336. 

This  rule  was  held  not  to  apply  in  a  case  where  a  railroad  train  had 
come  to  a  stop,  and  a  passenger,  on  stepping  from  the  lowest  step  of  the 
platform  of  the  car  to  the  ground,  fractured  her  knee  without  any  appar- 
ent external  cause. —  Delaware,  etc.,  R.  Co.  v.  Napheys,  90  Pa.  St.  135. 
The  court  said:  "  The  cars  were  at  rest  on  the  track;  there  was  no  jar 
or  breaking  of  the  machinery.  Mrs.  Napheys,  with  the  assistance  of  her 
husband,  was  descending  the  steps  from  the  platform  of  the  car.  They 
had  every  opportunity  of  seeing  and  knowing  where  she  was  going  and 
controlling  her  movements.  If  the  lower  step  was  inconveniently  or 
dangerously  high  for  her  in  the  condition  she  was,  she  and  her  husband 
had  as  good  an  opportunity  as  any  one  else  of  knowing  the  fact.  If  they 
had  even  a  suspicion  that  it  was  in  the  least  degree  unsafe  for  her  to  take 
the  last  step,  there  was  no  urgent  necessity  for  her  to  do  so.  The  train 
reached  its  destination,  and  there  was  no  occasion  for  haste  in  leaving 
the  car.  If  they  had  any  apprehension  of  danger,  or  even  inconvenience 
in  descending  from  the  lower  step,  there  was  nothing  to  prompt  them  to 
incur  the  risk." 

But  in  another  case  where  the  evidence  was  that  the  plaintiff  was  a 
passenger  on  one  of  defendant's  stages,  and  as  she  got  out  the  horses 
started  and  she  was  thrown  down  and  injured  thereby,  it  was  held  that 
the  facts  showed  prima  facie,  either  that  the  horses  were  unsuitable  for 
the  business  or  that  the  driver  was  incompetent. —  Roberts  v.  Johnson,  68 
N.  Y.  613. 

And  where  a  passenger  on  a  steamboat  was  injured  by  the  fall  of  a 
bale  of  goods  by  the  act  of  appellant's  servant,  it  was  held  that  there 
waa  prima  facie  evidence  of  negligence,  and  that  the  appellee  must 


RES    IPSA    LOQUITUR.  521« 

the  neces-  [425]  sary  work."  (o).  And  therefore,  in 
the  absence  of   any  evidence  to  tihovf  that  the  defeuduutB 

(o)   Per  Pockbarn,  C.  J. 

rebut  that  presumption. —  Memphis  &  Oliio  River  Packet  Co.  v,  MrCooI, 
8.S  Ind.  392;  43  Am.  Rep.  71,  and  note  73,  citing  timong  other  uuthoritlen 
Shearman  and  Rcdlleld  on  Negligence,  §  280,  and  dissenting  opinion  o( 
Wade,  C.  J.,  in  Ryan  v.  Gilmer,  3  Mont.  617,  as  expressing  a  contrary 
view. 

Contrary  to  this  general  rule,  in  the  case  of  Yarnell  v.  Kansas  City,  etc., 
R.  Co.  (ll.S  Mo.  570,  21  S.  W.  Rep.  3),  the  court  snid:  "It  has  been 
suggested  that  it  ■will  be  presumed  that  Yiirneil  was  in  the  exercise  of 
•due  care.'  This  may  be  granted;  but  while  indulging  this  presumption, 
It  must  not  be  forgotten  that  every  one  is  presumed  to  properly  acquit 
himself  of  his  engagements  and  his  duty  (Lenox  v.  Harrison,  88  Mo. 
401,  and  cases  cited),  aud  that  carriers  of  passensers  are  by  no  means 
outside  this  favorable  presumption.  So  that  the  result  is  that  one  pre- 
sumption rebuts  and  neutralizes  the  other,  like  the  conjunction  of  an 
acid  and  an  alkali."  See  Scheepers  v.  Union  Depot  R.  Co.  (Mo.),  20 
S.  W.  Rep.  712;  Spears  r.  Chicago,  B.  &  Q.  R.  Co.  (Nebraska),  62  N.  \V. 
Rep.  G8. 

As  examples  of  the  latter  class  of  cases,  those  not  resting  In  contract, 
may  be  mentioned  the  following: 

Defendant  company  was  engaged  in  unloading  Iron  ore  from  a  vewsel 
by  means  of  a  crane  to  which  was  attached  a  bucket.  While  .so  engaged 
the  bucket  tipped  and  threw  its  contents  upon  a  seaman  lawfully  work- 
ing upon  the  deck  of  the  vessel.—  Cammings  v.  The  National  Furnace 
Co.,  60  Wis.  603. 

The  court  said;  '<The  accident  Itself  was  of  such  a  character  as  to 
raise  a  presumption  of  negligence  either  in  the  character  of  the  ma- 
chinery used  or  in  the  care  with  which  it  was  handled;  and  as  tlie  jury 
found  the  fault  was  not  in  the  machinery,  it  follows  that  It  must  have 
been  in  the  handlins,  otherwise  there  is  no  rational  cause  shown  for  its 
happening.  *  *  *  The  rule  that  an  accident  may  be  of  sarh  a  nature 
as  to  raise  a  presumption  of  negligence  Is  fully  sustained  by  the  follow- 
ing authorities  cited  by  the  learned  counsel  for  the  respondent  In  their 
brief:  Mullen  v.  St.  John,  57  N.  Y.  567;  Lyons  v.  Rosenthal,  11  Hun, 
46;  Kearney  «.  L.  R.  B.  &  S.  C.  R.  Co.,  L.  R.  5  Q.  B.  411,  and  L.  R.  6 
Q.  B.  759;  Scott  v.  L.  &  St.  K.  Dock's  Co.,  8  Hurl.  &  C.  596;  Byrne  r. 
Boadle,  2  Hurl.  &  C.  722;  Briggs  v.  Olson,  4  Hurl.  &  C.  403;  Edgcr- 
ton  V.  N.  Y.,  etc.,  R.  Co.,  39  N.  Y.  227;  Kirst  r.  M.  L.  S.  &  W.  R.  Co., 
46  Wis.  489.  In  Scott  v.  L.  &  St.  K.  Dock's,  supra,  the  court  lays 
down  the  following  rule:  'In  an  action  for  personal  injury  caused 
by  the  allesed  negligence  of  the  defendant,  the  plaintiff  must  adduce 
reasonable  evidence  of  negligence  to  warrant  the  judge  in  leaving  the 

34 


530  PRESUMPTION   OF    CARE   OR   NEGLIGENCE. 

knew  of  the  insecurity  [426]  of  the  roof,  it  was  held 
that    the    mere    fact   of  a    plank  and  roll  of  zinc  falling 

case  to  the  jury;  but  when  the  thing  is  shown  to  be  under  the  man- 
agement of  the  defendant  or  his  servants  and  the  accident  is  such  as  in 
the  ordinary  course  of  things  does  not  happen,  if  those  who  have  the  man- 
agement use  proper  care,  it  affords  reasonable  evidence  in  the  absence  of 
explanation  by  the  defendant  that  the  accident  arose  from  want  of  care.' 
The  rule  laid  down  in  this  case  is  fully  sustained  by  the  cases  above  cited 
and  it  was  cited  and  approved  by  this  court  in  the  ease  of  Kirst  v.  M.  L. 
S.  &  W.  Ry.  Co.,  46  Wis.  439.  The  evidence  in  this  case  given  by  the 
defendant  makes  a  stronger  case  for  the  plaintiff  than  in  the  cases  cited. 
It  shows  conclusively  that  the  accident  would  not  have  happened  if  those 
handling  the  bucket  had  used  ordinary  care  in  seeing  that  the  bail  was 
securely  fastened,  before  the  bucket  was  hoisted,  and  there  had  been  no 
carelessness  on  the  part  of  the  man  who  handled  the  rope  attached  to  the 
spring.  The  affirmative  evidence  on  the  part  of  the  defendant  showing 
care  in  these  respects  is  not  of  the  most  substantial  kind.  The  fact  that 
the  man  who  handled  the  rope  and  whose  duty  it  was  to  see  to  those 
matters  was  not  put  on  the  stand  by  the  defendant  is  not  explained. 

"It  may  be  that  there  was  a  sufficient  reason  for  not  producing  him  in 
no  way  connected  with  his  knowledge  of  the  transaction,  but  it  would 
seem  that  if  there  was  any  such  reason  for  his  absence  at  the  trial,  the 
defendant  ought  to  have  shown  it.  In  the  light  of  the  authorities  above 
cited,  it  is  very  clear  to  us  that  upon  the  whole  evidence  th'i  question  of 
negligence  on  the  part  of  the  defendant  was  properly  submitted  to  the  jury. 

"It  is  also  urged  that  there  was  no  negligence  on  the  part  of  the  de- 
fendant or  its  servants  because  they  owe  no  duty  towards  the  plaintiff. 
It  is  suggested  that  after  the  defendant's  servants  commenced  unloading 
the  ore  the  plaintiff  had  no  right  to  be  upon  the  deck  of  the  vessel  for  any 
purpose,  and  that  for  the  purpose  of  this  trial  he  should  be  deemed  a 
mere  intruder  or  trespasser.  We  see  nothing  in  the  evidence  which  will 
sustain  that  position.  The  captain  of  the  crew  of  the  vessel  had  an  uo.- 
doubted  right  to  be  on  board  notwithstanding  the  defendant  was  unload- 
ing the  ore  and  perform  any  necessary  work  on  said  vessel  while  the 
defendant  was  unloading  which  did  not  interfere  with  the  work  of 
unloading." 

And  where  plaintiff  is  lawfully  in  the  highway,  and  an  adjoining  build- 
ing falls  upon  and  injures  him,  on  showing  these  facts  he  would  be  en- 
titled to  recover.  —  Mullen  v.  St.  John,  57  N.  Y.  567;  see,  also,  Murray 
V.  McShane,  52  Md.  '/U. 

So  where  plaintiff  was  seen  to  fall  in  the  street  and  was  picked  up 
senseless  and  injured  at  a  point  where  defendant's  track  rails  were  un- 
duly projecting,  it  was  held,  that  a  verdict  for  the  plaintiff  would  not  be 
dismissed.—  Woodman  v.  Metropolitan  R.  Co.,  149  Mass.  335;  21  N.  E. 
Rep.  482. 


RES    II»SA    LOyUITlU.  ^M 

through  a  roof  while  ii  man  was  on  the     [427]      nmf  was 
uo    evidence    of    negligence    against    the    defendants  (;>). 

(p)  Welfare  v.  The  L.  I!.  A  S.  0.  Ry.  Co.,  L.  K.  4  g.  \i.  O.I;  i^  1,.  J.  v   u   jt,  ,    .,mo 
/xxf,  p.  633]. 


Where  a  person  who  is  walking  alon<;  a  pathway  outside  of  a  railroad 
company's  right  of  way  is  struciv  by  cross-ties  us  they  fell  from  a  gon- 
dola car  of  a  moving  train,  the  company  Is  presumed  to  be  negligent. — 
llowserw.  Cumberland  &  P.  R.  Co.,  80  Md.  146;  30  Atl.  Rep.  906;  27  L. 
U.  An.  154;  40  C.  L.J.  161. 

The  explosion  of  dynamite  raises  a  presumption  of  negligence  (Jud- 
>on  V.  Giant  Powder  Co.  (Cal.),  40  Pac.  Rep.  1020;  41  C.  L.J.  244. 
So  does  the  falling  of  an  iron  bar  from  an  elevated  railroad  (Ilogan  o. 
Manhattan  Ry.  Co.,  26  N.  Y.  S.  Rep.  7'.t2;  C  Mi.sc.  Rep.  2*J5)  ;  or  the  falling 
of  ice  or  snow  from  a  roof  of  unusual  construction,  near  the  street 
(Shephard  v.  Creamer,  160  Mass.  4it6;  36  N.  E.  Rep.  475);  or  the  falling 
of  a  cistern  wall  in  course  of  construction  (Mulcairnes  v.  Janesville,  67 
Wis.  24)  ;  or  the  explosion  of  a  boiler. —  John  Morris  Co.  v.  Burgess,  44 
111.  App.  27. 

Supporting  the  general  doctrine,  see  Peer  v.  Ryan,  54  Mich.  224; 
Schultzt).  Moon,  33  Mo.  App.  329;  Nowell  v.  New  York,  52  N.  Y.  Super. 
Ct.  382;  Moore  v.  Parker,  91  N.  C.  275;  Bevis  r.  Baltimore  &  O.  R.  Co.. 
26  Mo.  App.  19;  Brooks  v.  Kings  Co.  El.  R.  Co.,  23  N.  Y.  S.  R.p.  1031 ; 
4  Misc.  Rep.  288;  Jacksonville,  T.  &  R.  W.  Ry.  Co.  v.  Peninsular  L.  T.  & 
M.  Co.,  27  Fla.  1,  157;  9  So.  Rep.  661 ;  Vicksburg  &  M.  R.  Co.  r.  Phillips, 
64  Miss.  693;  Wiedmer  v.  New  York  El.  R.  Co.,  41  Hun,  284;  Barnowsky 
r.  Helson,  88  Mich.  623;  15  L.  R.  A.  33;  50  N.  W.  Rep.  989;  Fleming  v. 
Pittsburg,  etc.,  R.  Co.,  158  Pa.  St.  130;  22  L.  R.  A.  351. 

Where  the  defendants  were  hoisting  a  heavy  box  to  the  upper  floors 
of  a  building  part  of  which  they  occupied,  and  just  as  the  box  reached  the 
.second  floor,  the  hooks  by  which  It  was  hehl  broke  and  It  fell  upon  and 
Injured  the  plaintiff  who  was  lawfully  In  the  basement.  This  was  held 
evidence  suflicleut  to  justify  a  verdict. —  Lyons  r.  Rosenthal,  11  Hun,  46. 

In  another  case  not  quite  so  clear  (Kaples  v.  Orth,  61  Wis.  5.T1),  where 
the  plaintiff  was  injured  while  sitting  upon  a  stairway  leading  to  a 
basement  by  a  block  of  ice  which  fell  from  the  shoulder  of  defendant's 
servant  who  was  carrying  It  down  to  the  basement,  the  question  of  the 
negligence  of  the  defendant  in  carrying  the  Ice  was  held  properly  sub- 
mitted to  the  jury,  who  might  from  the  facts  Infer  negligence.  Plnlnllff 
was  a  dealer  in  fruits  and  had  a  stand  on  the  comer  of  a  building  In  the 
basement  of  which  was  a  fish  market.  On  the  day  of  the  Injury  it  was 
very  hot  and  plaintiff  being  oppressed  with  the  heat,  seated  herself  In 
the  shade  upon  the  upper  step  of  stairs  leading  to  the  basement,  and 
while  in  this  position  the  injury  occurred. 


532  PRESUMPTION   OF   CARE   OR   NEGLIGENCE. 

The  thing  did  not  speak  for  itself,  first,  because     [428] 
there  probably  was  some  doubt  as  to  whether  it  was  the 


The  Court  said :  "  The  mere  fact  that  the  plaintiff  on  a  hot  day  left  her 
place  of  business  and  sat  down  upon  the  stairs  near  by  in  the  shade  to 
rest  does  not  authorize  us  to  say  as  matter  of  law  that  she  was  guilty  of 
contributory  negligence  (Murray  v.  McShane,  52  Md.  217;  36  Am.  Rep. 
369)  ;  especially  upon  her  testimony  which  the  jury  found  to  be  true  to 
the  effect  that  she  did  not  know  of  the  presence  of  the  servant  of  the 
defendants  until  just  at  the  time  of  the  injury.    *    *    * 

"  There  being  no  contract  relation  between  the  plaintiff  and  the 
defendants  it  was  incumbent  upon  her  to  give  evidence  tending  to  prove 
negligence  on  the  part  of  the  defendants  or  their  servants.    *    *    * 

"  It  is  to  be  remembered  that  the  servant  of  the  defendants  was  an 
active  agency  and  had  full  control  and  management  of  the  ice  in  question. 
This  being  so  and  the  accident  being  such  as  would  not  in  the  ordinary 
course  of  things  have  happened  if  the  servant  had  been  in  the  exercise  of 
proper  care,  and  in  the  absence  of  any  evidence  tending  to  show  that  a 
piece  of  the  ice  broke  off  while  the  cake  was  being  carried  with  ordinary 
care,  we  must  hold  that  the  jury  was  authorized  to  infer  from  the  facts 
and  circumstances  disclosed  negligence  on  the  part  of  the  servant  of  the 
defendants. —  Scott  t?.  London,  etc.,  Docks  Co.,  3  Hurl.  &  C.  596;  Kear- 
ney V.  L.  R.  &  S.  C.  R.  Co.,  L.  R.  5  Q.  B.  411 ;  L.  R.  6  Q.  B.  759 ;  2  Thomp. 
on  Neg.  1220;  Mullen  v.  St.  John,  67  N.  Y.  567;  Transp.  Co.  v.  Downerj 
11  Wall.  129;  Murray  v.  McShane,  52  Md.  217;  Rose  w.  Stephens,  etc., 
Transp.  Co.,  11  Fed.  Rep,  438;  13  Rep.  421;  Cummings  v.  Nat.  Furnace 
Co.,  60  Wis.  603. 

•*  In  such  case  it  is  hardly  accurate  to  say  that  negligence  is  presumed 
from  the  mere  fact  of  the  injury,  but  rather  that  it  may  be  inferred  from 
the  facts  and  circumstances  disclosed  in  the  absence  of  evidence  showing 
that  it  occurred  without  the  fault  of  the  defendant.  In  such  case  the 
facts  and  circumstances  speak  for  themselves  and  in  the  absence  of  such 
explanation  or  disproof  give  rise  to  the  inference  of  negligence.  Such  a 
case  comes  within  the  princip  le  res  ipsa  loquitur. — Briggs  v.  Oliver,  4  Hurl. 
&  C.  407;  Carpue  v.  London,  etc.,  R.  Co.,  5  Q.  B.  751;  Cockburn,  C.  J., 
and  Kelly,  C.  B.,  in  Kearney  v.  L.  R.  &  S.  C.  R.  Co.,  supra. 

"  Such  a  jury  may  draw  any  legitimate  inference  from  the  unquali- 
fied and  unrestricted  facts  and  circumstances  disclosed  in  the  evidence. 
It  follows  that  they  would  not  be  authorized  to  come  to  the  same  con- 
clusion if  such  inference  had  been  wholly  removed  by  evidence.  The 
case  before  us  is  certainly  on  the  border  line  and  close  to  the  line  at  that. 

"  We  should  be  equally  tender  and  respectful  of  the  verdict  had  it 
been  the  other  way." 

In  an  action  against  a  gas  company  for  injuries  received  by  the  plaintiff 
by  the  inhalation  of  gas  which  escaped  from  the  defendant's  pipes,  It 


RES    IPSA   LOgUITUR.  588 

defendant's  (or  his  servant's)  act  at  Jill;  and  next,  bccauAO 
[429]     it  could  not  bo  shown  that  the  defendant  wag  neg- 

appeart'd  that  the  plaintiff,  who  was  too  young  to  teinilfy,  occupied  tb« 
same  room  and  bed  with  his  mother;  that  the  door  of  the  room  In  which 
they  slept  was  broken  open  in  the  morning,  and  the  plulnllft  wum  found 
insensible  by  the  dead  body  of  his  mother,  whose  death  was  cuuHcd  by 
the  escaping  gas;  that  the  escapin<j  gas  came  from  a  crack  in  the  pipe  laid 
by  the  defendant  through  the  street  on  which  the  plaintiff  lived;  that 
there  were  no  gus  lixtures  In  the  room;  and  there  was  no  evidence  that 
the  plaintiff  or  his  mother  had  notice  of  escaping  gas.  There  was  alMO 
evidence  that  on  the  day  before  the  accident,  there  was  no  smell  of  gas  in 
the  street,  and  that  the  mother  was  a  sober  and  prudent  woman.  It  wa« 
held  that  there  was  evidence  sufficient  to  support  a  verdict  for  the  plain- 
tiff, and  that  a  ruling,  "  that  there  was  evidence  enough  of  want  of 
proper  care  on  the  part  of  the  defendant  to  make  it  resp(Jn^«lt)le,  on  the 
ground  that  it  was  bound  to  conduct  its  gas  in  a  proper  manner  and  that 
the  fact  that  the  gas  escaped  was  prima  facie  evidence  of  some  ne;:lc-cl  on 
the  part  of  the  defendant  was  not  open  to  exception."  —  Smith  v.  liosluu 
Gas-Light  Co.,  129  Mass.  318. 

And  where  water  escaped  from  defendant's  hydrant  into  plalnllfTs 
apartment  on  the  floor  below,  this  was  held  prima  facie  evidence  of  neg- 
ligence.—  Warren  v.  Kaufman,  2  Phila.  259. 

(p)  In  Welfare  v.  The  L.  B.  &  S.  C.  Ky.  Co.,  aupra,  Blackburn,  J.,  said  :— 
"  Mr.  Wood  [counsel]  argues  that  where  there  Is  a  duty  cast  upon  a 
person,  and  that  duty  is  neglected,  he  is  responsible,  whether  he  has  em- 
ployed a  contractor  to  do  it  for  him  or  not,  and  he  refers  to  I'ickard  v. 
Smith,  10  C.  B.  (N.  S.)  470.  In  this  case  no  duty  is  cast  on  the  railway 
company  to  insure  that  no  plank  shall  fall.  Their  duty  is  Ui  lake  reason- 
able care  to  keep  their  premises  in  such  a  state  that  those  whom  they  In- 
vite to  come  there  shall  not  be  unduly  exposed  to  danger.  No  doubt, 
the  case  might  occur  where  knowing  the  state  of  the  premises,  the  com- 
pany could  not  send  a  man  on  the  roof  to  repair  it  without  necessa- 
rily incurring  great  danger  of  the  roof  falling  down,  and  if  the  premises 
are  out  of  repair  to  this  extent,  It  would  be  a  breach  of  duly  to  send  a 
man  upon  the  roof  during  the  hours  when  persons  would  be  frequt-nlluK 
the  premises.  But  then  in  order  to  make  out  such  a  ca.se  Homelhlng 
more  must  be  shown  than  the  mere  fact  that  the  accident  t>ccurre<!.  In 
this  case  there  was  a  total  absence  of  evidence  to  show  that  the  premises 
were  really  dangerous  so  as  to  make  the  company  responsible.  There  Is 
no  evidence  that  the  company  were  aware  that  the  slate  of  the  roof 
was  such  as  to  make  it  dangerous  to  send  a  man  on  It  with  zinc  and  all 
that  was  shown  was  that  the  accident  happened,  and  no  proof  waj»  given 
that  the  company  knew  they  were  exposing  the  persons  coming  on  their 
premises  to  undue  danger;  consequently  I  am  of  opinion  that  a  noo-sult 
was  right." 


534  PRESUMPTION   OF   CARE   OR  NEGLIGENCE. 

ligent  unless  knowledge  of  the  insecurity  of  the  premises 
was  shown.  The  court  also  said  that  they  could  not 
presume  that  the  man  on  the  roof  was  in  the  employ  of  the 
owner,  as  he  might  be  in  the  employ  of  a  contractor  (q). 

(g)  In  America  It  has  been  held  that  Clare  v.  National  City  Bank,  1  Sweeny, 
the  falling  of  a  piece  of  wood  from  a  539.  And  so  also  that  drivers  of  car- 
building  during  repairs  is  prima  facie  riages  are  in  the  service  of  the  owners, 
evidence  of  negligence  in  the  owner;  Norrla  v.  Kotiler,  41  N.  T.  42. 


[430]     CHAPTER  VII. 

ACTIONS    FOR    IN.TUUIES    CAUSING    DEATH. 

At  common  law  a  civil  action  would  not  lie  for  an 
injury  causing  death  (a),  but  a  remedy  has  in  certain  cases 
been  provided  by  a  statute  passed  in  1846,  and  commonly 
called  Lord  Campbell's  Act  (b),  which,  after  reciting  that  — 
whereas  no  action  at  law  is  now  maintaina})le  against  a  per- 
son who  by  his  wrongful  act,  neglect,  or  default  may  have 
caused  the  death  of  another  person,  and  it  is  oftentimes 
right  and  expedient  that  the  wrong-doer  in  such  case  should 
be  answerable  in  damages  for  the  injury  so  causetl  by 
him,  —  by  section  1  enacts  that  *'  whensoever  the  death  of 
a  person  shall  bo  caused  by  wrongful  act,  neglect,  or 
default,  and  the  act,  neglect  or  default  is  such  as  would 
(if  death  had  not  ensued)  have  entitled  the  party  injured  to 
maintain  an  action  and  recover  damages  in  respect  thereof, 
then  and  in  every  such  case  the  person  who  would  have 
been  liable  if  death  had  not  ensued  shall  be  liable  to  an 
action  for  damages  notwithstanding  the  death  of  the  per- 
son injured,  and  although  the  death  shall  have  been  caused 
under  such  circumstances  as  would  amount  in  law  to 
felony." 

By  section  2,  *♦  every  action  shall  be  for  the  benefit 
of  the  wife,  husband,  parent  and  child  (c)  of  the  person 
whose  death  shall  have  been  so  caused,  and  shall  be  brought 

(a)  Baker  r.  Boulton,  1  Camp.  493.—  the  statntc;  DickenBon  r.  N.  K.  Uy.  Co., 

[City  of  Eureka  v.   Mcrrincld,  5.-5  Kan.  2  H.  .t  C.  7i'.,  M  L.  J.  Kx.  91.     (In  Ohio 

794;  37  Pac.  Ucp.  113;  Moe  v.  Smllcy,  125  an  lllcKltlniato  chUil  1»  next  of  kin  of  lu 

Pa,  St.  130;  23  W.  N.  C.  461 ;  IloUund  v.  mother  and  thcreforo  within  tho  moan- 

Lynn  A- B.  K.  Co.,  144  Mass.  425.J  ing    of    the  statutes.    Muhl'ii   Adiur.  r. 

(6)  9  &  10  Vict.  c.  93.  Michigan  Southern,  IL  Co..   10  Ohio  SI- 

(c)  An  illegitimate  Child  Is  not  within  272.  J 

(535) 


536  ACTIONS   FOR   INJURIES    CAUSING   DEATH. 

by  and  in  the  name  of  the  executor  or  administrator  of 
the  person  deceased;  and  in  every  such  action  the  jury 
may  give  such  damages  as  they  may  think  proportioned  to 
the  injury  resulting  from  such  death  to  the  parties  respec- 
[431]  tively  for  whom  and  for  whose  benefit  such  action 
shall  be  brought ;  and  the  amount  so  recovered,  after 
deducting  the  costs  not  recovered  from  the  defendant,  shall 
be  divided  amongst  the  before-mentioned  parties  in  such 
shares  as  the  jury  by  their  verdict  shall  find  and  direct  "  (d). 

By  section  3,  "  Provided  always  that  not  more  than  one 
action  shall  lie  for  and  in  respect  of  the  same  subject- 
matter  of  complaint ;  and  that  every  such  action  shall  be 
commenced  within  twelve  calendar  months  after  the  death 
of  such  deceased  person." 

By  section  4,  "  In  every  such  action  the  plaintiff  on  the 
record  shall  be  required,  together  with  the  declaration,  to 
deliver  to  the  defendant  or  his  attorney  a  full  particular  of 
the  person  or  persons  for  whom  and  on  whose  behalf  such 
action  shall  be  brought,  and  of  the  nature  of  the  claim  in 
respect  of  which  damages  shall  be  sought  to  be  recovered." 

By  section  5,  "  The  following  words  and  expressions  are 
intended  to  have  the  meanings  hereby  assigned  to  them 
respectively,  so  far  as  such  meanings  are  not  excluded  by 
the  context  or  by  the  nature  of  the  subject-matter  ;  that  is 
to  say,  words  denoting  the  singular  number  are  to  be 
understood  to  apply  also  to  a  plurality  of  persons  or  things ; 
and  words  denoting  the  masculine  gender  are  to  be  under- 
stood to  apply  also  to  persons  of  the  feminine  gender ;  and 
the  word  '  person '  shall  apply  to  bodies  politic  and  cor- 
porate ;  and  the  word  *  parent  '  shall  include  father  and 
mother,  and  grandfather  and  grandmother,  and  stepfather 
and  stepmother ;  and  the  word  *  child  '  shall  include  son 
and  daughter,  and  grandson  and  granddaughter,  and  step- 
son and  stepdaughter." 

(d)  See  27  &  28  Vict.  c.  95,  ss.  1 , 2 ;  and  also  31  &  32  V  let.  c.  119,  s.  25. 


LOKD    CAMI'BKLL'S    ACT.  637 

By  section  6  the  Act  is  not  to  apply  to  Scotland. 
The  doctrine  of  contributory  not^ligeuce  applica  (c)  to 
actions  under  Lord  Campbell's  Act. 


(e)  Scniort'.  Wiinl,  1  El.  &  El.  385;  28       3.M  ;  Tucker  v.  Chaplin,  2  C.    A  K.  7S0; 
L.  J.  Q.  H.  13.1;  Wlgmore  v.  Jay,  6  Uxch.        [see post,  p.  640]. 


Statutes. —  la  most  of  the  States  In  this  country  wtatutes  have  been 
passed  simUar  to  Lord  Carapbell\s  Act.  — Infra,  443,  Johnson  v.  Cleve- 
land, 7  Ohio  St.  aSC;  Kansas  Pac.  R.  Co.  r.  Miller,  2  Cal.  442;  Tlll.-y  r. 
Hudson  River  R.  Co.,  24  N.  Y.  471;  2  Thomp.  on  Ne-:.  12'J4-130'.>;  31  C. 
L.  J.  183;  Connors  v.  Burlington,  etc.,  Ry.  Co.,  71  la.  4ltO;  32  N.  W. 
Rep. 465. 

Alabama.—  Code  188C,  §  2589,  is  constitutional  (Richmond  &  I).  R. 
Co.  r.  Freeman,  97  Ala.  289;  11  So.  Rep.  800);  and  the  action  may  l)e 
maintained  by  the  personal  representatives  of  the  deceased  (Columbus 
&  W.  Ry.  Co.  V.  Bradford,  86  Ala.  574;  G  So.  Rep.  90;  Thompson  r. 
Louisville  &  N.  R.  Co.,  91  Ala.  49G;  8  So.  Rep.  40(J;  Louisville  &  N.  R. 
Co.  17.  Trammel!,  93  Ala.  350;  9  So.  Rt-p.  870),  but  not  the  heirs.—  Stew- 
art V.  Louisville  &  N.  R.  Co.,  83  Ala.  493;  4  So.  Rep.  373. 

Arkansas,  —  The  administrator  may  maintain  two  actions  —  one 
under  the  act  of  1883,  for  the  benefit  of  the  next  of  kin,  and  the  other 
under  the  act  of  1838,  for  the  benefit  of  the  estate.  —  Davis  v.  St.  Louis, 
etc.,  Ry.  Co.,  53  Ark.  117;  13  S.  W.  Rep.  801. 

California.  —  Either  (but  not  both),  the  heirs  or  personal  representa- 
tives, may  sue. —  Uartigan  v.  Southern  Pac.  R.  Co.,  8G  Cal.  142;  24  Pac. 
Rep.  851. 

Colorado.  —  For  the  death  of  the  husband  the  wife  may  sue,  or  If 
she  does  not  the  heirs  may  (Hayes  v.  Williams,  17  Colo.  4i'.5;  30  Pac. 
Rep.  252);  and  for  the  death  of  a  minor,  or  unmarried  person,  either 
or  both  of  the  parents  may  maintain  an  action.—  Pierce  v.  Connors,  20 
Colo.  178;  37  Pac.  Rep.  721;  Denver,  S.  P.  &  P.R.  Co.r.  Wilson,  12  Colo. 
20;  20  Pac.  Rep.  340. 

Georgia.— The  widow,  or  if  no  widow  then  the  child  or  children 
(Scott  V.  Central  R.  Co.,  77  Ga.  450;  Snell  v.  Smith,  78  Ga.  355),  or  a 
temporary  administrator,  may  maintain  the  action. —  Louisville  &  N.  R. 
Co.  V.  Chaffln,  84  Ga.  519;   11  S.  E.  Rep.  801. 

Indiana. — The  lather,  or,  in  case  of  his  desertion  or  imprisonment, 
the  mother,  may  sue  for  the  death  of  a  minor  child  (Ft.  Wayne,  C.  &  L. 
By.  Co.  V.  Byerle,  110  lud.  100;  11  N.  E.  Rep.  G;  Louisville,  E.  &  St.  L. 
R.  Co.  V.  Lohgfcs,  G  Ind.  App.  228;  33  N.  E.  Hep.  449;  Louisville,  N.  A. 
&  C.  Ry.  Co.  V.  Goodykoontz,  119  Ind.  Ill;  21  N.  E.  Rep.  472);  but  the 
father  cannot  sue  for  the  death  of  the  mother's  bastard.— Thornburg  r. 
American  Strawboard  Co.  (Ind.),  40  N.  E.  Rep.  10G2.  The  action,  in 
general,  may  be   maintained  by  the   personal  representatives    of    the 


538  ACTION   FOR   INJURIES    CAUSING   DEATH. 

[432]  A  mother  having  a  legal  claim  for  support  from 
her  son,  who  is  actually  supporting  her  at  the  time,  may 

deceased. —  Indianapolis,  etc.,  R.  Co.  v.  Stout,  53  Ind.  143;  Clore  v. 
Mclntire,  120  Ind.  262;  22  N.  E.  Rep.  128;  Berry  v.  Louisville,  etc.,  R. 
Co.,  128  Ind.  484;  28  N.  E,  Rep.  182. 

Kansas. —  The  right  of  action  is  in  the  husband  or  wife  of  the  deceased 
for  six  months  after  the  time  of  the  death,  and  then  absolutely  in  the 
minor  children,  if  any. —  Hamilton  v.  Hannibal  &  St.  Joe  R.  Co.,  39  Kan. 
56;  18Pac.  Rep.  57. 

Kentucky. —  The  personal  representative  of  the  deceased  may  success- 
fully sue  for  the  wrongful  death  of  his  intestate. —  Bruce  v.  Cincinnati  R- 
Co.,  83  Ky.  174;  Edmondson  v.  Kentucky  Cent.  Ry.  Co.  (Ky.),  28  S.  W. 
Rep.  789;  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Adams  (Ky.),  13  S.  W. 
Rep.  428;  Givens  v.  Kentucky  Cent.  R.  Co.,  89  Ky.  231;  12  S.  W.  Rep. 
257;  Morris  v.  Louisville  &  N.  R.  Co.  (Ky.),  12  S.  W.  Rep.  940;  Baker  «. 
Louisville  &  N.  R.  Co.  (Ky.),  17  S.  W.  Rep.  191.  But  not  where  intes- 
tate  leaves  neither  widow  nor  children. —  Kentucky  Cent.  R.  Co.  v. 
Wainwright  (Ky.),  13  S.  W.  Rep.  438. 

Gen.  St.  Ky.,  Ch.  57,  §  3,  provides,  that  "the widow,  heir,  or  personal 
representative  "  of  a  person  whose  life  is  lost  by  the  willful  neglect  of 
another,  may  recover  punitive  damages. —  Louisville  &  N.  R.  Co.  v.  Cop- 
page  (Ky.),  13  S.  W.  Rep.  1086;  Reinder  v.  Blick  &  Phillips  Coal  Co. 
(Ky.),  13  S.  W.  Rep.  719;  Louisville  &  N.  R.  Co.  v.  Coniff  (Ky.),  27  S. 
W.  Rep.  865;  Henderson  v.  Kentucky  C.  R.  Co.,  86  Ky.  359;  5  S.  W.  Rep. 
875;  Carrithers  v.  Cox  (Ky.),  14  S.  W.  Rep.  509;  Cincinnati,  N.  O.  &  T. 
R.  Ry.  Co.  V.  Prewitt  (Ky.),  17  S.  W.  Rep.  484;  Jordan  v.  Cincinnati,  N. 
O.  &  T.  P.  Ry.  Co.,  89  Ky.  40;  11  S.  W.  Rep.  1013;  Henning  v.  Louisville 
Leather  Co.  (Ky.),  12  S.  W.  Rep.  550;  Louisville  Safety- Vault  &  Trust 
Co.  V.  Louisville  &  N.  R.  Co.  (Ky.),  17  S.  W.  Rep.  567.  But  no  recovery 
can  be  had  by  the  personal  representative  where  the  deceased  left  neither 
widow  nor  child.— Koening  v.  Covington  (Ky.),  12  S.  W.  Rep.  128; 
Louisville  &  N.  R.  Co.  v.  Merriwether  (Ky.),  12  S.  W.  Rep.  935.  Nor 
can  a  father  recover  as  heir  of  his  son. —  Kentucky  Cent.  R.  Co.  v.  Mc- 
Ganty  (Ky.),  14  S.  W.  Rep.  601;  Hackett  v.  Louisville,  etc.,  Ry.  Co. 
(Ky.),  24  S.  W.  Rep.  871. 

Louisiana. —  For  the  wrongful  death  of  the  husband  and  father  the 
mother  individually,  and  as  tutrix  of  her  minor  son,  may  sue. —  Curley  v. 
Illinois  Cent.  R.  Co.,  40  La.  Ann.  810;  6  So.  Rep.  103. 

Maryland.—  For  the  wrongful  death  of  his  parents  a  minor  may  sue 
in  the  name  of  the  State  for  his  use.— Albert  v.  State,  66  Md.  325;  7  Atl. 
Rep.  697. 

Massachusetts. —  An  employer  is  liable  for  his  negligence  resulting  in 
the  death  of  an  employe  and  the  widow  or  next  of  kin  of  the  latter, 
dependent  upon  him  for  support,  may  maintain  the  action.— Dacey  ». 
Old  Colony  R.  Co.,  153  Mass.  112;  26  N.  E.  Rep.  437;  Dalyu.  New  Jersey 


CONTUIliUTOKY    NEGLIGENCE.  53l> 

bring  an  action  under  tho  statute  for  the  loss  of  such  sup- 
port, and,  it  seems,  even  if  tho  claim  for  support  were  :i  rueru 
moral  claim  (/  ). 

(/)  Weems  v.  Mathle8on,4  Macq.  H.  L,  Gas.  215;  [im<o/)o«(,  p.  wi]. 

S.  &  I.  Co.,  155  Mass.  1;  29  N.  E.  Rep.  507.  The  leijal  rL-pruHenUitive 
can  only  recover  diiraages  suffered  by  the  employe  to  the  tinu-  of  hi.H 
death.—  Ramsdell  v.  New  York  &  N.  E.  R.  Co.,  151  Masa.  245;  23  N.  E. 
Rep.  1103. 

Midn'jnn. —  IIow.  St.  Mich.,  §§  8313,  8314,  applies  to  all  corporations. — 
Van  Brunt  v.  Ciucinuati,  etc.,  R,  Co.,  78  Mich.  530;  44  N.  W.  Rep.  321. 

Mississippi. —  The  executor  or  administrator  of  the  deceased  may  hoc 
his  negligent  corporate  employer. —  Illinois  Cent.  R.  Co.  v.  Hunter,  70 
Miss.  471;  12  So.  Rep.  482;  Amos  v.  Mobile  &  O.  R.  Co.,  G3  Miss.  609. 
See  Vicksburg  &  M.  R.  Co.  v.  Phillips,  G4  Miss.  093.  In  general,  the 
widow  may  recover. —  Natchez  Cotton  Mills  Co.  v.  Mullins,  (J7  Miss.  072; 
7  So.  Rep.  542. 

Missouri. —  If  the  deceased  be  a  minor  or  unmarried,  the  father  and 
mother,  or  if  one  be  dead,  the  survivor  may  maintain  the  suit. —  Tobln  r. 
Missouri  Pac.  Ry.  Co.  (Mo.),  18  S.  W.  Rep.  9'.m;.  One  who  aids  the 
wrongful  act  is  liable  with  the  principal. —  Gray  v.  McDonald,  28  Mo. 
App.  477. 

New  Hampshire. —  The  executor  or  administrator  of  the  deceaaed  may 
recover  for  his  death. —  Clark  v.  City  of  Manchester,  C2  N.  H.  677; 
Jewett  V.  Keene,  Id.  701.  See  Davis  v.  Town  of  Rumney  (N.  11.),  29 
Atl.  Rep,  542. 

New  York. —  The  executor  or  administrator  or  ancillary  executor  of 
the  decedent  may  sue. —  Lang  v.  Houston,  etc.,  R.  Co.,  75  Hun,  151 ;  27 
N.  Y.  S.  Rep.  90.  See  Lee  v.  Van  Voorhls,  78  Hun,  575;  29  N.  Y.  8. 
Rep.  571;  Lustig  v.  New  York,  etc.,  R.  Co.,  65  Hun,  547;  20  N.  Y.  S. 
Rep.  477. 

Ohio.— The  widow  of  the  deceased  is  the  '•  next  of  kin,"  under  Rev. 
St.,  §  6135.— Lima  Electric  L.  &  P.  Co.  v.  Deubler,  7  Ohio  Clr.  Ct.  R.  185. 

PennsylvaJiia. —  A  deserted  married  woman  may  sue  for  the  death  of  a 
minor  child  of  herself  and  husband. —  Kerr  v.  Pennsylvania  R.  Co.  (Pa.), 
32  All.  Rep.  9G.  The  widow  and  not  the  parents  of  the  deceased  may 
recover.—  Lehigh  Iron  Co.  v.  Rupp,  100  Pa.  St.  95.  Neither  the  admin- 
istrator (Books  V.  Danville,  95  I'a.  St.  158),  nor  the  next  of  kin  como 
Within  the  act.—  Pennsylvania  R.  Co.  v.  Keller,  07  Pa,  St.  300. 

Rhode  Island.— The  action  may  be  brought  by  the  widow  or  If  there 
be  none  then  by  the  executor  or  administrator,  but  not  by  the  father,  as 
next  of  kin.— Goodwin  v.  Nickerson,  17  R.  I.  478;  23  Atl.  Rep.  12. 

South  Dakota — Damages  to  the  estate  only  of  the  deceased,  ar« 
recoverable.— Belding  v.  Black  Hills  &  Ft.  P.  R.  Co.,  3  S.  D.  3C9;  63  N. 
W.  Rep.  750. 


540  ACTION   FOK   INJURIES    CAUSING   DEATH. 

In  an  action  brought  for  the  benefit  of  the  father  of  the 
deceased,  who  was  nearly  blind  and  injured  in  his  limbs, 

Tennessee. —  If  the  widow  waives  her  right  to  sue,  the  personal  repre- 
sentalive  or  children  in  the  latter's  name,  may  bring  the  action. —  "Webb 
V.  East  Tenn.  V.  &  G.  R.  Co.,  88  Tenn.  119;  12  S.  W.  Rep.  428.  See 
Loague  v.  Memphis  &  C.  R.  Co.,  91  Tenn.  458;  19  S.  W.  Rep.  430. 

Texas. —  All  or  any  one  of  the  parties  entitled  to  damages,  may  bring 
an  action  for  the  benefit  of  all. —  Texas  &  N.  O.  R.  Co.  v.  Berry,  67  Tex. 
238;  5  S.  W.  Rep.  817;  East  Line  &  R.  R.  C.  Co.  v.  Culberson,  68  Tex. 
664;  5  S.  W.  Rep.  820;  International  &  G.  N.  Ry,  Co.  v.  Kuehn,  70  Tex. 
582;  8  S.  W.  Rep.  484;  Missouri  Pac.  Ry.  Co.  v.  Henry,  75  Tex.  220; 
12  S.  W.  Rep.  828;  Texas  &  P.  Ry.  Co.  v.  Hall,  83  Tex.  675;  19  S.  W. 
Rep.  121;  Galveston,  H.  &  S.  A.  R.  Co.  v.  Kutac,  71  Tex.  643;  11  S.  W. 
Rep.  127;  Texas  &  P.  Ry.  Co.  v.  Robertson,  82  Tex.  657;  17  S.  "W.  Rep. 
1041.  See  Winnt  u.  International  &  G.  N.  R.  Co.,  74  Tex.  32;  11  S.  W. 
Rep.  907.  Private  corporations  (Fleming  v.  Texas  Loan  Agency,  87  Tex. 
238;  27  S.  W.  Rep.  126),  but  not  municipal  corporations,  (Ritz  ».  City 
of  Austin,  1  Tex.  Civ.  App.  455;  20  S.  W.  Rep.  1029,  1031),  or  railroad 
receivers,  individually,  are  liable. —  Texas  &  P.  Ry.  Co.  v.  Bledsoe,  2 
Tex.  Civ.  App.  88;  20  S.  W.  Rep.  1135. 

Vermont. —  The  executor  or  administrator  and  not  the  next  of  kin, 
should  bring  the  suit. —  Needham  v.  Grand  Trunk  R.  Co.,  38  Vt.  294. 

Washington. —  Decedent's  heirs  or  personal  representatives  may  sue 
for  his  wrongful  death. —  Graetz  v.  McKenzie,  3  Wash.  St.  194;  28  Pac. 
Rep.  331 ;  Northern  Pac.  R.  Co.  v.  Ellison,  3  Wash.  St.  225 ;  28  Pac.  Rep.  333, 

Wisconsin. —  The  personal  representative,  and  not  the  next  of  kin, 
should  sue. —  Whiton  v.  Chicago,  etc.,  R.  Co.,  21  Wis.  805.  See  Schmidt 
V.  Deegan,  69  Wis.  800;  34  N.  W.  Rep.  88. 

Contributory  Negligence. —  The  doctrine  of  contributory  negligence 
applies  to  actions  under  our  statutes. —  Gary  v.  Winter,  34  Cal.  163 ;  At- 
lanta, etc.,  R.  Co.  V.  Ayres,  53  Ga.  12.  (The  negligence  of  the  deceased 
may  be  shown  in  mitigation  of  damages  in  this  State.—  Id.  As  in  Ten- 
nessee, Nashville,  etc.,  R.  Co.  ■».  Smith,  6  Heisk.  174;  Louisville  &  N.  ?. 
Co.  V.  Howard,  80  Tenn.  144;  19  S.  W.  Rep.  116);  State  v.  Manchester, 
etc.,  R.  Co.,  62  N.  H.  528;  Nickerson  v.  Harriman,  38  Me.  277;  Bancroft 
V.  Boston,  etc.,  R.  Co.,  97  Mass.  275 ;  Dennick  v.  Railroad  Co. ,103  U.  S.  112; 
Telfer  v.  Northern,  etc.,  R.  Co.,  30  N.  J.  L.  188;  Schmidt  u.  Chicago,  etc., 
R.  Co.,  83  111.  405.  (The  doctrine'of  comparative  negligence  prevails  In 
this  State.  7d.)  Cumberland,  etc.,  R.  Co.  v.  Fagenbaker,  37  Md.  166; 
Sherman  v.  Western  Stage  Co.,  24  la.  515;  Sauter  w.  New  York,  etc.,  R. 
Co.,  66  N.  Y.  50;  Elliott  v.  St.  Louis,  etc.,  R.  Co.,  67  Mo.  272;  Bradbury 
V.  Furlong,  13  R.  I.  15;  Knight  v.  Ponchartrain  R.  Co.,  23  La.  Ann.  462; 
King  V.  Henkle,  80  Ala.  506;  The  A.  W.  Thompson,  39  Fed.  Rep.  116; 
San  Antonio  &  A.  P.  Ry.  Co.  v.  Bennett,  76  Tex.  151;  13  S.  W.  Rep.  319. 
But  see  Gray  v.  McDonald,  104  Mo.  303;  16  S.  W.  Rep.  398;  Louisville 


CONTRIBUTOUY    NEOLIOENC'E.  541 

and  who  could  not  work  so  woll  as  ho  used,  it  was  proved 
that  tho  Bon  used  to  contribute  to  his  support,  :iinl  that  five 
or  six  years  previously  tho  son  had  contril)Uted  money  out 

&  N.  R.  Co.  V.  Brlcc,  84  Ky.  298;  1  S.  W.  Rep.  483;  Derby  v.  Kentucky 
Cent.  R.  Co.  (Ky.),  4  S.  W.  Rep.  303. 

Anil  as  the  statutes  generally  provide,  that  If  the  deceased  could  not 
have  maintained  an  action,  none  can  be  raainUiineU  by  his  personal 
representatives,  the  negligence  of  a  fellow-servant  which  will  bar  an 
action  by  a  person  injured  against  a  common  employer,  will  prevent  a 
recovery  by  his  representatives  in  case  of  his  death  by  the  same  cause.— 
McDonald  v.  Eagle,  etc.,  Mnfg.  Co.,  68  Ga.  839;  G7  Ga.  701;  Toledo, 
etc.,  R.  Co.  V.  Moore,  77  111.  217;  Illggius  v.  Hannibal,  etc.,  R.  Co.,  30 
Mo.  418;  Slattery's  Admr.  v.  Toledo,  etc.,  R.  Co., 23  In.l.  81 ;  Packet  Co. 
V.  McCue,  17  Wall.  608;  Toledo,  etc.,  R.  Co.  v.  Conroy,  G8  111.  fifiO;  Kan- 
sas, etc.,  R.  Co.  V.  Salmon,  11  Kan.  83;  Elliott  v.  St.  Louis,  etc.,  R.  Co., 
67  Mo.  272;  Madison,  etc.,  R.  Co.  v.  Bacon,  CG  Ind.  205;  Kiimier  v. 
Junction  R.  Co.,  33  Ohio  St.  150;  State  v.  Maine  Central  R.  Co.,  00  Me. 
490;  Clark  v.  New  York,  etc.,  R.  Co.,  100  Mass.  39;  35  N.  E.  Rep.  104. 

(/)  Action  for  Loss  of  Support. — This  is  the  case  (Pennsylvania 
B.  Co.  V.  Adams,  55  Pa.  St.  499;  Pennsylvania  R.  Co.  v.  Keller,  67  Pa.  St. 
800;  County  Cora.  Hartford  Co.  v.  Hamilton,  (JO  Md.  340),  though  he  h 
of  age.  —  Houston,  etc.,  R.  Co.  v.  Cowser,  57  Tcx.  293.  So  in  Ma.^.sa- 
chusetts  (Daly  v.  New  Jersey,  S.  &  I.  Co.,  155  Mass.  1;  29  N.  E.  Rep. 
507),  an  invalid  sister  was  held  to  be  entitled  to  recover  for  the  loss  of 
her  brother's  support.  See  Schnatz  v.  Philadelphia  &  R.  R.  Co.,  IGOPa. 
St.  602;  28  Atl.-Rep.  952;  34  W.  N.  C.  290. 

Her  pecuniary  condition  may  properly  be  alleged  to  show  the  reason- 
able expectation  of  pecuniary  assistance  from  deceased,  but  not  for  the 
purpose  of  increasing  the  amount  of  damages.  —  The  International,  etc., 

I  B.  Co.  V.  Kindred,  67  Tex.  491. 

I  In  Chicago,  etc.,  R.  Co.  v.  Moranda,  93  111.  302,  it  was  held  error  to 
admit  proof  that  an  administratrix  and  her  child  had  no  other  means  of 
support  than  that  arising  from  deceased's  daily  earnings.  —  Compare 
Central  R.  Co.  v.  Moore,  Gl  Ga.  151;  Chicago,  etc.,  R.  Co.  v.  Howard, 
6  LI.  App.  569.     Contra,  Hodnett  v.  Boston  &  A.  R.  Co.,  156  Mass.  86; 

l30N.  E.  Rep.  224. 

I      The  text  is  supported  by  other  authorities ;  see  Clay  r.  Central  R.  &  B. 

i  Co.,  84  Ga.  345;  10  S.  E.  Rep.  967;  Lovell  v.  De  Bardelaben  Coal  &  I.  Co., 

|90  Ala.  13;  7  So.  Rep.  756;  Bradley  v.  Sattler  (111.'),  41  N.  E.  Rep.  171; 

164  III.  App.  504;  Duval  v  Hunt,  34  Fla.  85;  15  So.  Rep.  876;  DanieLi  v. 
Railway  Co.,  86  Ga.  236;  12  S.  E.  Rep.  365;  Richmond  &  D.  R.  Co. 
V.  Johnston,  89  Ga.  560;   15  S.  E.  Rep.  908;  Gulf,  C.  &  S.  F.  Ry.  Co. 

It.  Southwick  (Tex.  Civ.  App.),  30  S.  W.  Rep.  692;  Daniels  v.  Savannah, 
etc.,  Ry.  Co.,  86  Ga.  236;  12  S.  E.  Hep.  365. 


542  ACTION   FOR   INJURIES    CAUSING   DEATH. 

of  his  earnings,  but  bad  not  done  so  since,  it  was  held 
that  there  was  evidence  for  the  jury  of  pecuniary  loss  to 
the  father  (g). 

If  the  party  injured  receive  compensation  in  satisfaction 
of  all  claims  before  his  death,  an  action  will  not  lie  after 
his  death,  for  his  death  does  not  create  a  fresh  cause  of 
action  {h). 

The  jury  cannot  take  into  consideration  mental  suffering 
or  loss  of  society  (^). 

(fir)  Hetherington  t).  N.  E.  Ry.  Co.,  9  Q.  Contra,  South.,  etc.,  R.  Co.  ».  Sullivan, 

B.  D.  160.  59   Ala.    272 ;     International    &    G.   N. 

(ft)  Read  v.  G.  Eastern  Ry.  Co.,  L.  R.  Ry.  Co.  v.  Kuehn,  70  Tex.  582;  8  S.  W. 

3Q.  B.  555;  9  C.  &  S.  714;  37  L.  J.  Q.  B.  Rep.  484;  Bowes  v.  City  of  Boston,  155 

278;  Griffiths  v.  Karl  of  Dudley,  9  Q.  B.  Mass.  344;  29  N.  E.  Rep.  633.    SeeVlcks- 

D.357;  [Dibble  r.  New  York,  etc.,  R.  Co.,  burg&M.  R.  Co.  v.  Phillips,  64  Miss.  693; 

25  Barb.  18?.;  Foulkes  v.  Nashville,  etc.,  2  So.  Rep.  537.] 

R.  Co.,  5  Baxt.  (Tenn.)   663;   Price  v.  (i)  Blake  v.  Mid.  Ry.  Co.,  18Q.  B.  93 

Richmond  &  D.  R.  Co.,  33  S.  C.  556;  12  In   Scotland    they   may.     Patterson  v. 

S.  E.  Rep.  413;  Hecht  v.  Ohio  &  M.  Ky.  Wallace,  1  Macq.  H.    L.  Cas.  748. 
Co.,   132  Ind.   507;   32    N.   E.  Rep.   302. 

( i)  Mental  Suffering,  etc.  —  Mental  suffering  and  loss  of  society  are 
not,  generally,  elements  of  damages  in  actions  of  this  kind.  —  Little  Rock, 
etc.,  R.  Co.  V.  Barker,  33  Ark.  550;  Kansas,  etc.,  R.  Co.  v.  Miller,  2  Colo. 
442;  Donaldson  v.  Miss.  R.  Co.,  18  la.  280;  Chicago  v.  Harwood,  80  111. 
88;  Nashville,  etc.,  R.  Co.  v.  Stevens,  9  Heisk.  12;  State  u.  Baltimore, 
etc.,  R.  Co.,  24  Md.  84;  Ohio,  etc.,  R.  Co.  v.  Tindall,  13  Ind.  366;  Paul- 
mier  v.  Erie  R.  Co.,  34  N.  J.  L.  151;  Huntington,  etc.,  R.  Co.  v.  Decker, 
84  Pa.  St.  419;  County  Com.  Hartford  Co.  v.  Hamilton,  60  Md.  340; 
Kesler  v.  Smith,  66  N.  C.  154;  March  v.  Walker,  48  Tex.  372;  Cotton 
Press  Co.  v.  Bradley,  52  Tex.  587;  Brady  v.  Chicago,  4  Biss.  448;  Need- 
ham  V.  Grand  Trunk  R.  Co.,  38  Vt.  294;  Schaub  v.  Hannibal  &  St.  J.  R. 
Co.,  106  Mo.  74;  16  S.  W.  Rep.  924;  James  v.  Richmond  &  D.  R.  Co.,  92 
Ala.  231;  9  So.  Rep.  335;  Webb  v.  Denver  &  R.  G.  W.  Ry.  Co.,  7  Utah,  17; 
24  Pac.  Rep.  616;  Dwyer  v.  Chicago,  etc.,  Ry.  Co.,  84  la.  479;  51  N.  W. 
Rep.  244;  Tobin  v.  Missouri  Pac.  Ry.  Co.  (Mo.),  18  S.  W.  Rep.  996; 
Kelley  v.  Central  R.  of  Iowa,  48  Fed.  Rep.  663;  The  Corsair,  145  U.  8. 
335;  12  Sup.  Ct.  Rep.  949;  Storr-ie  v.  Marshall  (Tex.  Civ.  App.),  27  S.  W. 
Rep.  224;  Goss  v.  Missouri  Pac.  Ry.  Co.,  50  Mo.  App.  614;  Pennsylvania 
Tel.  Co.  V.  Varnan  (Pa.),  15  Atl.  Rep.  624;  Chicago  City  Ry.  Co.  v.  Gil- 
lam,  27  111.  App.  386;  Munro  v.  Paciflc  Coast  D.  &.  R.  Co.,  84  Cal.  615; 
24  Pac.  Rep.  303. 

In  Baltimore  &  Ohio  R.  Co.  v.  Noell  (32  Gratt.  394),  the  mental  anguish 
of  a  mother  for  the  death  of  an  unmarried  son  was  considered  as  aa 
element  of  damage. 


NOMINAL  —  KXEMl'LAKY  —  DAMAOK8.  .543 

Damages  of  a  pecuniary  nature  must  be  shown  (j),  and 
they  must  not  be  of  a  merely  nominal  character  (A). 

(i)  Franklin  r.  8,  E.Ky.  Co..  3  11.  &  son,  4  II.  A  N.  6M;  29  U  J.  Ex.25.    Nom- 

K  jii,  Iniil    diimiiKon    may    l>o    recovered    In 

(*)  Boulter  f.  Webster,  13  W.  U.  289;  America.    Shearman,  e.   299. 
n  L.  T.  N.  S.  59«;  Duckworth  v.  John- 

In  Beeson  v.  Green  Mountain  Gold  Mining  Co.  (57  Cal.  20),  the  loss  of 
a  wife's  society. 

In  Cregin  v.  Brooklyn  Crosstown  R.  Co.  '19  Ilun,  341),  an  Instruction 
that  a  jury  consider  the  loss  sustained  by  the  deprivation  of  "  rt-jjular 
attendance,  services  and  comfort  of  his  wlfe'.s  society,"  was  held  to  be 
proper. 

But  in  Howard  Co.  Com.  v.  Legg  (93  Ind.  523;  47  Am.  Rep.  890). 
damages  for  negligent  killing  were  held  not  to  include  the  wife's  loss  of 
her  husband's  companionship. 

The  statute  may  provide  that  pain  and  suffering  may  be  an  element  of 
damages.— Collins  v.  East  Tenn.  R.  Co.,  9  Ilelsk.  841. 

The  statutes  generally  provide  that  the  jury  may  give  such  damages  as 
they  may  deem  fair  and  just. —  Infra. 

(J)  Walker  v.  Lake  Shore  &  M.  S.  Ry.  Co.  (Mich.),  C2  N.  W.  Rep. 
1032;  Louisville  &  N.  R.  Co.  v.  Orr,  91  Ala.  548;  8  So,  Rip.  360;  Carlson 
f>.  Oregon,  etc.,  Ry.  Co.,  21  Ore.  450;  28  Pac  Rep.  4'.t7;  McGown  c. 
International  &  G.  N.  R.  Co.,  85  Tex.  289;  20  S.  W.  Rip.  80;  Anderhon 
V.  Chicago,  etc.,  R.  Co.,  35  Neb.  95;  62  N.  W.  Rep.  840;  McAlory  v 
Louisville  &  N.  R.  Co.,  04  Ala.  272;  10  So.  Rep.  507;  Richmond  r.  Chicago 
&  W.  M.  Ry.  Co.,  87  Mich.  374;  49  N.  W.  Rip.  fi21;  Kelley  v.  Central  R. 
of  Iowa,  48  Fed.  Rep.  663;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Fitzsimmons,  40 
m.  App.  360;  Moffatt  v.  Tenney,  17  Colo.  189;  30  Pac.  Rep.  348;  llayca 
V.  Williams,  17  Colo.  465;  30  Pac.  Rep.  352;  Southern  Pac.  Co.  r.  Lafferty, 
67  Fed.  Rep.  536;  6  C.  C.  A.  474;  Hutchinson  v.  St.  Paul,  etc..  Ry.  Co., 
44  Minn.  5;  46  N.  W.  Rep.  79;  Munro  v.  Pacific  Coast  I).  &  R.  Co.,  84 
Cal.  515;  24  Pac.  Rep  303;  San  Antonio  &  A.  P.  Ry.  Co.  v.  Long,  4  Tex. 
Civ.  App.  497;  26  S.  W.  Rep.  114;  27  S.  W.  Hup.  113;  Topping  r.  Town 
Of  St.  Lawrence,  86  Wis.  526;  57  N.  W.  Rep.  365;  Hurst  r.  Detroit  City 
By.,  84  Mich.  639;  48  N.  W.  Rip,  44,  But  In  an  action  for  the  death  of  a 
minor,  actual  pecuniary  damage  need  not  be  proved.  Atrops  r.  Costello, 
8  Wash.  St.  149;  35  Pac.  Rep.  620.  See  Delaware,  L.  &  W.  R,  Co.  c. 
Jones,  128  Pa.  St.  308;   18  Atl.  Rep.  330;  24  W.  N.  C.  562. 

(A)  Nominal  Damages. —  Nominal  damages  may  be  given  in  this 
country  in  such  actions. —  Chicago,  etc.,  R.  Co.  r.  Sweet,  45  111.  197; 
Oldfleld  V.  New  York  &.  Harlem  R.  Co.,  14  N.  V.  310.  Sec  Ihl  r.  Forty- 
second  St.,  etc.,  R.  Co.,  47  N.  Y.  317;  Iloughkirk  r.  Delaware  &  Hud. 
Canal  Co.,  92  N.  Y.  219;  Chicago  r.  Scholton,  75  111.  4<;8;  Johnston  r. 
Cleveland,  etc.,  R.  Co.,  7  Ohio  St.  3:36;  Atchison,  etc.,  R.  Co.  c.  Weber, 


544  ACTION   FOR   INJURIES    CAUSING   DEATH. 

It  is  not  necessary,  however,  to  show  the  loss  of  a  legal 
[433]  right,  a  loss  of  reasonable  expectation  of  benefit  be- 
ing sufficient  to  support  the  action  (?). 

(Z)  Franklin w.  S.  E.Ry. ,mpra;  Dalton  C.  P.  227;  Pym  v,  Gt.  Northern  Ry.  Co., 
V.  S.  E.  Ry.  Co.,  4  0.  B.  N.  S.  296 ;  27  L.  J.       infra. 


33  Kan.  543;  6  Pac.  Rep.  877;  Fordyce  v.  McCants,  51  Ark.  509;  II  S.  W. 
Eep.  694;  Anderson  v.  Chicago,  etc.,  R.  Co.,  34  Neb.  95;  52  N.  "W.  Rep. 
840;  Cherokee  &  P.  Coal  &  M.  Co.  v.  Limb,  47  Kan.  469;  28  Pac.  Rep. 
181;  Klepsch  v.  Donald,  4  Wash.  St.  436;  30  Pac.  Rep.  991;  Silberstein 
V.  William  Wicke  Co.,  22  N.  Y.  S.  Rep.  170;  29  Abb.  N.  C.  291. 

Exemplary  damages  are  generally  not  allowed. —  Holmes  v.  Oregon, 
etc.,  Ry.  Co.,  6  Sawyer,  262;  Baltimore,  etc.,  R.  Co.  v  Kelly,  24  Md. 
371;  Southwestern  R.  Co.  v.  Paulk,  24  Ga.  356;  Cleveland,  etc.,  R.  Co.  v. 
Rowan,  66  Pa.  St.  393;  Atrops  v.  Costello,  8  Wash.  149;  35  Pac.  Rep. 
620;  Thompson  v.  Louisville  &  N.  R.  Co.,  91  Ala.  496;  8  So.  Rep.  406; 
Mulchahey  v.  Washburn  Car  Wheel  Co.,  145  Mass.  281;  14  N.  E.  Rep.  106. 

They  are  allowed  in  Texas. —  Galveston,  etc.,  R.  Co.,  v.  La  Gierse,  51 
Tex.  189;  Cotton  Press  Co.  v.  Bradley,  52  Tex.  587;  Tex.  Const.  1875, 
Art.  XVI.  But  see  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Compton,  75  Tex.  667;  13 
S.  W.  Rep.  667. 

(Where  both  actual  and  exemplary  damages  are  sought  the  allega- 
tions should  be  in  the  nature  of  two  distinct  counts  on  different  causes  of 
action. —  Galveston,  etc.,  R.  Co.  v.  La  Gierse,  51  Tex.  189. 

"  Mere  negligence  of  a  railroad  employe  causing  death  is  not  a  wiUful 
act  or  omission  of  a  corporation  for  which  exemplary  damages  may  be 
recovered  under  the  Tex.  Const.  1869,  §  30." —  Houston,  etc.,  Ry.  Co. 
V.  Baker,  57  Tex.  419. 

And  they  are  allowed  in  some  other  States.  —  Morgan  v.  Durfee,  69 
Mo.  469;  Haley  v.  Mobile,  etc.,  R.  Co.,  7  Baxt.  239;  Baltimore,  etc.,  R. 
Co.  V.  Noel!,  32  Gratt.  394. 

But  nearly  all  the  cases  support  the  rule  that  exemplary  damages  can 
be  recovered  only  where  the  defendant's  neglect  was  gross,  willful  or 
malicious.  See  Haehl  y.  Wabash  R.  Co.,  119  Mo.  325;  24  S.  W.  Rep. 
737;  Richmond  &  D.  R.  Co.  v.  Freeman,  97  Ala.  289;  11  So.  Rep.  800; 
Kansas  City,  Ft.  S.  &  M.  R.  Co.  v.  Daughtry,  88  Tenu.  721;  13  S.  W. 
Rep.  698;  International  &  G.  N.  R.  Co.  v.  McDonald,  75  Tex.  41;  12  8. 
W.  Rep.  860. 

(0  Grotenkemper  v.  Harris,  25  Ohio  St.  510;  Paulmier  v.  Erie  R.  Co., 

34  N.  J.  L.  151;  Pennsylvania  R.  Co.  v.  Keller,  67  Pa.  St.  300;  Mclntyre 
V.  New  York,  etc.,  R.  Co.,  37  N.  Y.  287;  Chicago  &  E.  R.  Co.  v.  Branyan, 
lOInd.  App.  570;  37  N.  E.  Rep.  190;  Petrie  v.  Columbia  &  G.  R.  Co.,  29 
S.  C.  303;  7  S.  E.  Rep.  515. 

It  has  been  held  that  it  is  no  defense  that  the  heirs  of  deceased  have 


NOMINAL EXEMPLAUY  —  DAMAUK8.  T>  M) 

[434]  Expenses  of  funeral  and  mourning  nro  not  recov- 
erahlo  (m). 

[43r»]  It  was  held  in  one  case  that  damages  are  not  to 
bo  estimated  according  to  the  vahio  of  tiio  doceasod's  life 
calculated  by  annuity  tables,  but  the  jury  are  to  give  a  fair 
compensation  (ii)  ;  but  it  has  been  decided  that  where  the 
deceased  had  covenanted  to  pay  an  annuity  to  the  plaint  ill", 
the  tables  might  be  consulted  to  show  the  value  of  his  loss 

(m)  Dalton  v.  S.  E.  Ry.  Co.,  supra.  Jar.  758;  and  sco  the  Judjoncnt  of  llrett. 

See,  however,  Osborne  r.  Glllett,  post,  J.,    in  Itowley   v.  f,.  .t   N     W.   Uy.  Co., 

Morphy  v.  New  York  Ry.  Co.,  88  N.  Y.  infra;  PhllllpB  r.  L.  *  S.  \V.  Uy.  Co.,6  y. 

US.  B.  D.  78 ;  49  L.  J.  g.  U.  -ZXi. 

(n)  Armsworth  v.  S.  E.  By.   Co.,  11 

assigned  their  claim. —  State  v.  Boston,  etc.,  R.  Co.,  58  N.  U.  41(i.     .Sco 
Quln  V.  Moore,  15  N.  Y.  432. 

(m)  Jackson  v.  Pittsburgh,  etc.,  Ry.  Co.  (Indiana),  3'J  N.  E.  Hi-p. 
663;  Holland  u.  Brown,  35  Fed.  Rep.  43.  In  America  the  Htalutes  of  iho 
Bcveral  States  have  generally  been  construed  as  including  .such  expenses 
and  the  expenses  of  medical  attendance  and  nursing  when  the  law  Imposes 
an  obligation  upon  the  person  for  whose  benefit  the  action  Is  brought 
to  pay  them.  — Pennsylvania,  etc.,  R.  Co.  v.  Bantora,  54  P:i.  St.  495; 
Owen  V.  Brockschmidt,  54  Mo.  285;  Roeder  v.  Ormsby,  22  How.  Pr,  270; 
Bains  tJ.  St.  Louis  Iron  Mountain,  etc.,  R.  Co.,  71  Mo.  ir.4;  Bunyoa  v. 
Metropolitan  R.  Co.,  19  I).  C.  7C;  Leahy  v.  Davis,  121  Mo.  227;  25  S.  W. 
Rep.  941;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Southwick  (Tex.  Civ.  App.),  30  S. 
W.  Rep.  592;  Petrie  v.  Columbia  &  G.  R.  Co.,  29  S.  C.  8^3;  7  S.  E.  Rep. 
615;  State  w.  Probate  Court  of  Dakota  County,  51  Minn.  241;  53  N.  W. 
Bep.  463;  Augusta  Factory  v.  Davis,  87  Ga.  (148;  13  S.  E.  Rep.  677. 

And  if  any  one  for  whose  benefit  the  action  is  brought  Is  lawfully 
bonnd  to  pay  such  expenses  they  may  be  recovered,  though  all  the  beue- 
flciaries  are  not  so  bound. — Murphy  v.  New  I'ork  Central,  etc.,  R.  Co.,  88 
N.  Y.  445. 

(71)  While  mortality  tables  are  admissible  In  evidence  (Batch  v.  Grand 
Baplds  &I.  R.  Co.,  67  Mich.  394;  34  N.  W.  Rop.  884;  Galveston,  H.  &.  S. 
A.  Ry.  Co.  V.  Leonard  (Tex.  Civ.  App.),  29  S.  W.  Rep.  955;  Selldrs  r. 
Foster,  27  Neb.  113;  42  N.  W.  Rep.  907;  San  Antonio  &  A.  P.  Ry.  Co.  r. 
Bennett,  7G  Tex.  151;  13  S.  W.  Rep.  319);  the  jury  should  award  a  f.ilr 
compensation.— Lowe  v.  Chicago,  etc.,  Ry.  Co.  (Iowa),  56  N.  W.  liep. 
619;  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  v.  Needham,  62  Fid  Rep.  371 ;  3  C.  C. 

I  A.  129;  10  U.  S.  App.  339.     See  Nelson  v.  Lake  Shore,  etc.,   Ky.  Co. 

[  (Mich.),  62  N.  W.  Rep.  993.     Such  tables  are  not  indispensable.—  Atchi- 
son, T.  &  S.  F.  R.  Co.  V.  Hughes  (Kansas),  40  Pac.  Rep.  919;  Deisen  v. 

jChicago,  etc.,  Ry.  Co.,  43  Minn.  454;  45  N.  W.  Rep.  8C4. 

I  35 


546  ACTIOX  FOR   mJUKIES   CAUSING   DEATH. 

(o).  In  the  latter  case  the  deceased  was  bound  by  his 
covenant,  but  in  the  former  case  the  deceased  might  have 
varied  the  disposal  of  his  income.  It  seems  equally  objec- 
tionable to  [436]  allow  the  jury  to  suppose  that  they 
are  bound  by  the  table  or  to  prevent  them  from  availing 
themselves  of  the  assistance  of  the  tables. 

The  deceased  may  have  been  in  possession  of  a  fixed  in- 
come, so  that  if  he  had  lived  his  injuries  would  not  diminish 
his  income,  but  the  loss,  though  arising  from  the  injuries, 
is  practically  sufiered  from  the  fact  of  the  death  causing 
the  fixed  income  to  be  distributed;  in  such  case  the  reason- 
able expectations  of  the  persons  entitled  under  the  Act,  and 
whose  interests  have  been  injuriously  affected  by  the  death, 
have  to  be  considered,  and  even  the  loss  of  means  of  edu- 
cation and  of  the  comforts  and  conveniences  of  life  (p). 

A  wife  received  an  injury  on  a  railway  to  the  pecuniary 
loss  of  her  husband.  On  his  death  she  sued  the  company 
to  recover  as  testatrix  for  such  loss.  It  was  held  that,  the 
action  being  on  the  contract  to  carry  safely,  and  the  loss 
having  accrued  to  the  personal  estate,  the  action  survived  to 
[437]  her  (q).  And  so  it  was  held  that  an  executrix 
might  recover  for  loss  sustained  by  her  husband  being 
injured  and  unable  to  attend  to  business  till  his  death  (r). 

(o)  Rowley  v.  L.  &  N.  W.  Ry.  Co.,  42  (q)  Potter  v.  Met.  Ry.  Co.,  32  L.  T.  N 

L.  J.  Exch.  153;  L.  R.  8  Exch.  221.  8.  36  (Ex.  Ch.). 

(r)  Bradshawr.  Lane,  and  New  York 

^  (p)  Pym  V.  Gt.  Northern  Ry.  Co.,  4  B.       Ry.  Co.,  L.  R.  10  C.  P.  189;  44  L.  J.  C.  P. 

&  S.  396;  3-2  L.  J.  Q.  B.  377.  148.    See  remarks  In  Leggott  v.  Gt.  N. 

Ry.  Co.,  1  Q.  B.  D.  604;  [see  infra]. 

(o)  Georgia  R.Co.  v.  Oaks,  42  Ga.  410 ;  Walters  v.  Chicago,  etc.,  R.  Co., 
41  la.  71;  Louisville,  etc.,  R.  Co.,  v.  Mahony's  Admrx.,  7  Bush,  235;  San- 
ter  V.  New  York,  etc.,  R.  Co.,  CG  N.  Y.  50;  Donaldson  v.  Mississippi, etc., 
R.  Co.,  18  la.  280. 

(r)  Long  V.  Morrison,  14  Ind.  595;  Hyatt  v.  Adams,  16  Mich.  180; 
Barley  v.  Chicago,  etc.,  R.  Co.,  4  Biss.  430. 

Cregino.  Brooklyn,  etc.,  R.  Co.,  75  N.  Y.  192. 

Eden  v.  Lexington,  etc.,  R.  Co.,  14  B.  Mon.  204. 

Needham  v.  Grand  Trunk  R.  Co.,  38  Vt.  294. 

But  when  there  may  be  two  causes  of  action,  one  for  loss  of  life  of 


DAMAOES —  DISTKIUUTION.  f)  1  7 

The  maxim  actio  personalis  moriiur  cum  persona  applies 
however  where  the  cause  of  action  is  in  substance  an  injury 
to  the  person,  and  not  an  injury  to  the  personal  cslatc. 
So  that  for  the  merely  consequential  expenses  arisitiL'  from 
the  injury  to  the  person,  no  action  can  be  brought  by  the 
personal  representative  (s). 

As  to  the  distribution  of  damafjes  between  widow  and 
children,  see  Sanderson  v.  Sanderson  (^),  Shallow  y.  Vcr- 
den  (m). 

It  seems  that  a  judgment  recovered  for  damajres  for  in- 
juries causiiiij  death  is  no  bar  to  an  action  for  injuries 
to  deceased's  personal  property  ari6in<jj  from  the  same 
negligence  {x)  ;  and  it  is  presumed  the  converse  would  hold 
good. 

It  is  no  answer  to  an  action  under  this  statute  that  the 

(«)  Pulling  V.  Gt.  Eastern  Ry.  Co.,  0  150.— [Hedrlck  r.  Ilwacx)Ry.  A  X«t.  Co., 

Q.  B.  D.  110.  4  Waiih.  St.  <ni);  :50  I'ac.  Itcp.  TU.j 

(0  Sanderson  v.  Sanderson,  36L.  T.  (x)  Barnelt  i-.  Luc-aa,  6   Ir.  11,  C.  L. 

K.  S.  847.  247. 

(u)  Shallow  V.  Verden,  9  Ir.  R.  C.  L. 

deceased  and  the  other  for  loss  and  sufferini;  before  death  by  tlu-  .'sarae 
cause,  a  judgment  is  one  to  be  held  a  bar  to  the  other. —  Ilansford  v. 
Payne,  11  Bush,  380. 

In  Illinois  under  the  act  of  1853  damages  are  such  as  arise  from  pecu- 
niary loss  to  the  widow  or  next  of  kin;  none  are  recoverable  for  the 
suffering  of  the  deceased  or  disability  in  his  business. —  Ilolton  v.  Daly, 
106  111.131. 

(s)  An  action  abates  by  the  death  of  the  wrong-doer,  in  some  States  — 
Russell  V.  Sunbury,  37  Ohio  St.  372;  Hegerich  v.  Keddie,  N.  Y.  Ct.  App. 
1  Kast.  Rep.  8G. 

But  in  cases  of  death  by  wrongful  act,  the  general  rule  under  the  sut- 
otes,  is  that  the  action  is  not  abated.—  Senn  v.  Southern  R.  Co.,  li.'4  Mo. 
fi21 ;  28  S.  W.  Rep.  6G;  Vicksburg  &  M.  R.  Co.  v.  Phillips,  64  Miss.  0i»3; 
:'  So.  Rep.  537;  People  r.  Troy  Steel  &  I.  Co.,  31  N.  Y.  S.  Rep.  337. 

(0  The  distribution  of  the  amount  recovered,  is  generally  regulated  by 
atute.     See  Chicago  &  A.  R.  Co.  v.  Logue,  47  111.  App.  29«;  Richmond 

Chicago  &  W.  M.  Ry.  Co.,  87  Mich.  374:  40  N.  W.  Rep.  621 ;  Rajnowskl 

Detroit,  etc.,  R.  Co.,  74  Mich.  15;  41  N.  W.  Rep-  »*".  84'.';  Powell  r. 
Powell,  84  Va.  415;  4  S.  E.  Rep.  744;  Missouri  Pac.  Ry.Co.  c.  Henry,  75 
Ttri.  220;  12  S.  W.  Rep.  828. 


548  ACTION    FOR   INJURIES    CAUSING   DEATH. 

act   causiDw  the  injury  was  a  felony  which  has  not  been 
prosecuted  {y). 

iy)  Osborne  v.  Gillett,  L.  R.  8  Exch.  88;  42  L.  J.  Ex.  53. 


(?/)  By  statute  in  some  States  it  is  provided  that  the  right  of  action  of 
any  person  injured  by  any  felony  shall  not  be  merged  in  such  felony. — 
N.  Y.  Code  Civil  Proc,  vol.  4;  N.  Y.  K.  S.,  §  1899,  infra.  See  Tex.  Bev. 
Stats.  1879,  pp.  419,  420. 

It  is  provided  by  statute  in  Georgia  that  "if  the  injury  amounts  to  a 
felony  the  person  injured  must  simultaneously,  or  concurrently,  or  pre- 
viously prosecute  for  the  same  or  allege  a  good  excuse  for  the  failure  so 
to  prosecute,  provided  that  this  section  shall  not  apply  to  torts  committed 
by  railroad  corporations  or  other  Incorporated  companies,  or  their  agents 
or  employes,  nor  shall  the  same  apply  to  natural  persons." —  Ga.  Code, 
1882,  §  2970. 

From  Judge  Bennett's  note  to  the  case  of  Appleby  v.  Franklin,  High 
Ct.  of  Justice,  Q.  B.  Div.,  25  Am.  Law  Eeg.  304,  307,  it  is  gathered  that 
the  rule  that  a  person  who  has  been  injured  by  a  felony  is  not  allowed  to 
bring  an  action  upon  it  for  damages  until  he  has  instituted  criminal  pro- 
ceedings was  adopted  in  Alabama  (McGrew  v.  Cato,  Minor,  8;  Middle- 
ton  V.  Holmes,  3  Port.  424;  Blackburn  v.  Minter,  22  Ala.  613;  Martin  v. 
Martin,  25  Id.  201 ;  Nelson  v.  Bondurant,  26  Id.  341 ;  Bell  v.  Toy,  35  Id. 
184),  and  Georgia  (Adams  v.  Barrett,  5  Ga.  404;  Neal  w.  Farmer,  5  Id. 
555;  McBain  v.  Smith,  13  Id.  315) ;  recognized  in  Pennsylvania  (Hut- 
chinson V.  Bank  of  Wheelings  41  Pa.  St.  42) ;  denied  in  Massachusetts 
(Boston,  etc.,  R.  Co.  v.  Dana,  1  Gray,  83) ;  but  approved  in  a  subsequent 
case  (Atwood  v.  Fisk,  101  Mass.  365),  and  denied  in  the  following  cases: 
Brunson  w.  Martin,  17  Ark.  277;  Hyatt  v.  Adams,  16  Mich.  189;  Lofton 
V.  Vogler,  17  Ind.  106;  Newell  u.  Cowan,  30  Miss. 492;  Mitchells.  Mims, 
8  Tex.  6;  Plummer  v.  Webb,  1  Ware,  71;  Allison  v.  Bank,  6  Rand.  223; 
Pettingill  v.  Rideout,  6N.  H.  454;  Nash  v.  Primm,  1  Mo.  125;  Mann  v. 
Trabue,  Id.  709;  Gray  v.  McDonald,  104  Mo.  303;  16  S.  W.  Rep.  398; 
Vawter  v.  Hultz,  112  Mo.  633;  20  8.  W.  Rep.  689;  Whiter.  Fort,  SHawks, 
251. 

Judge  Bennett  concludes :  — 

"  1st.  A  private  injury  is  not  'merged'  in  a  felony,  so  that  the  right 
of  recovery  is  forever  gone,  even  though  the  criminal  has  been  convicted 
and  punished. 

"  2d.  That  it  is  not  necessary  that  a  criminal  trial  should  be  had 
before  a  civil  suit  can  be  commenced. 

"  3d.  That  if  the  private  action  is  first  commenced,  it  will  not  be  sus- 
pended or  continued,  until  after  the  criminal  has  been  convicted. 

"4th.  That  consequently  the  Statute  of  Limitations  will  not  be  sus- 
pended during  the  pendency  of  a  criminal  prosecution. 


ACT   CAUSING    INJUlcY    A    KELONY.  549 

[438]  The  pl;iintiff*s  (luughlcr  was  killcMl  l)y  tlu*  de- 
fendant's negligence,  and  ho  claimed  damages  for  loss  of 

"  5th.  That  in  the  few  States  where  the  contrary  doctrine  him  b«?en 
more  or  less  recoguized,  it  has  never  been  extended  to  miiKleineanoRi, 
but  Is  strictly  conllned  to  felonies. —  4  Ohio,  37G;  G  B.  Mon.  38;  15  G». 
349;   Id  Id.  203." 

In  Appleby  v.  Franklin,  High  Ct.  Justice,  Q.  B.  Div.,  25  Am.  I>aw  Kcr. 
304,  the  English  rule  that  a  person  who  has  been  injured  by  a  felony  Is 
not  allowed  to  bring  an  action  upon  it  for  djimages  until  he  ha.s  In.siliutcd 
criminal  proceedings,  was  held  not  to  apply  where  the  plaintiff  had  been 
indirectly  injured  in  the  loss  of  his  servant's  or  his  daughter's  services. 
The  action  was  for  loss  of  service  by  seduction.  The  statement  at  clakn 
alleged  in  the  flrst  paragraph  that  the  defemlant  had  seduced  the  plain- 
tiff's daughter  and  serv'aut,  and  in  the  second  paragraph  that  the  defend- 
ant bad  administered  noxious  drugs  to  the  plaintiff's  said  daughter  for 
the  purpose  of  procuring  abortion,  whereby  she  had  bc_'n  mnde  ill  and 
incapacitated  for  service.  The  defendant  took  out  a  summons  before  a 
Master  to  strike  out  paragraph  2,  on  the  ground  that  it  disclosed  a  fel- 
ony for  which  there  had  been  no  prosecution,  and  that  therefore  no  causo 
of  action  arose  upon  it.  The  Master  struck  out  the  paragraph  and  the 
plaintiff  appealed  to  Stephen,  J.,  who  referred  the  question  to  the  Dlvb)- 
lonal  Court. 

Huddleston,  B.,  said:  — 

•'The  statement  of  claim  was  made  by  a  mother  alleging  that  the  de- 
fendant had  seduced  her  daughter.  In  the  second  paragraph  it  was  stated 
that  the  defendant  had  further  injured  her  daughter  by  administering 
drugs  to  her  for  the  purpose  of  procuring  abortion.  It  was  naid  that 
the  Master  was  right,  because  paragraph  2  disclosed  a  felony  which 
could  not  be  actionable  until  prosecuted.  Mr.  Terrell  .says  the  objection 
cannot  be  taken  by  demurrer  nor  by  plea:  Uoope  v.  D'Auigdor.  How- 
ever, It  seems  clear  from  the  case  of  Wells  v.  Abraham,  that  there  may  be 
a  power  to  strike  it  out,  and  there  is  strong  authority  to  show  that  a 
party  injured  cannot  maintain  an  action  against  the  party  injuring  him: 
Wellock  V.  Constantine.  In  that  case  Willes,  J.,  nonsuited  the  plaintiff, 
on  the  ground  that  she  was  the  party  injured.  This  was  notic«"d  In  tho 
case  of  Ex  parte  Ball,  Li  re  Shepard,  although  some  doubt  was  .sug-restvd 
whether  Wellock  v.  Constantine  was  an  authority;  at  all  events  Bram- 
well  and  Baggalay,  L.  JJ.,  decided  in  favor  of  the  plaintiff,  on  the 
ground  that  the  duty  to  prosecute,  if  any,  was  not  in  him ;  therefore,  when 
a  per.son  who  is  himself  or  herself  Injured,  takes  civil  procoedlngs  for  the 
Injury,  no  action  will  lie  until  there  has  been  a  prosecution  In  a  criminal 
court.  This  rule  does  not  apply  when  the  party  suing  is  not  the  party 
injured.  A  master  or  father  who  sues  for  loss  of  service,  can  maintain 
the  action  even  if  a  felony  is  committed.  In  the  case  of  Osbom  r.  Gll- 
lett,  It  was  held  that  the  master  could  not  malnUin  an  action  for  the  Ioa« 


550  ACTION    FOR   INJURIES    CAUSING   DEATH. 

her  serv-  [439]  ices;  the  defendant  pleaded  that  the 
dauirhter  was  killed  on  the  spot.     It  was  held  by  the  Court 

of  his  daughter  and  servant,  who  had  been  immediately  killed;  but  the 
4th  plea,  that  the  act  amounted  to  a  felony,  and  that  the  person  commit- 
ting it  had  not  been  prosecuted,  was  held  bad.  The  argument  of  Graham 
in  that  case  quoted  "White  v.  Spettigue,  13  M.  &  W.  603,  as  establishing 
that  the  rule  as  to  a  right  of  action  being  suspended  by  felony,  was  not 
applicable  except  between  the  party  injured  and  the  criminal;  White  v. 
Spettigue  is  in  point.  In  this  state  of  things  we  are  bound  by  Osborn 
V.  Gillett,  and  the  master  was  wrong  in  striking  out  the  second  para- 
graph. It  would  be  a  scandalous  failure  if  the  defendant  could  not  be 
made  amenable  to  damages  in  such  a  case.  The  appeal  must  be  allowed 
with  costs." 

Willes,  J.,  said:  "  I  am  of  the  same  opinion,  and  the  authorities  leave 
no  room  for  doubt.  A  person  injured  cannot  bring  an  action  for  a  cause 
which  amounts  to  a  felony  until  he  has  prosecuted  the  felon.  Such  a 
claim  is  not  demurrable,  nor  can  it  be  objected  to  by  plea,  because,  if 
either  of  these  were  allowed,  it  would  extinguish  the  cause  of  action. 
"Whether  the  cause  could  be  suspended  or  withdrawn  until  the  condition 
was  fulfilled  or  not,  is  another  matter,  but  no  better  course  could,  in  my 
opinion,  be  adopted  than  striking  out  that  which  is  wrongly  put  in.  This, 
however,  could  only  be  done  against  a  person  who  is  under  an  obligation 
to  prosecute,  and  that  is  not  the  case  here:  Osborn  v.  Gillett  is  strictly 
in  point." 

[p.  562  (a)  (b)]  Some  of  the  State  statutes  have  been  construed  to 
not  include  cases  where  death  is  instantaneous. —  Grosso  v.  Delaware, 
etc.,  R.  Co.,  50  N.  J.  L.  317;  13  All.  Rep.  233;  Worden  v.  Humeston  & 
S.  R.  Co.,  72  la.  201;  33  N.  W.  Rep.  629;  Belding  v.  Black  Hills,  etc.,  R. 
Co.,  3  S.  D.  369;  53  N.  "W.  Rep.  750;  Beckman  v.  Georgia  Pac.  Ry.  Co., 
(Miss.),  12  So.  Rep.  956;  Womack  v.  Central  R.  &  B.  Co.,  80  Ga.  132;  5 
S.  E.  Rep.  63;  Illinois  Cent.  R.  Co.  v.  Pendergrass,  69  Miss.  425;  12  So. 
Rep.  954. 

In  Connecticut,  New  York,  South  Carolina,  Tennessee  and  Texas  an 
action  may  be  maintained  whether  the  death  is  instantaneous  or  conse- 
quential.—Murphy  u.  New  York,  etc.,  R.  Co., 30 Conn.  184;  29  Conn.  496; 
Brown  v.  Buffalo,  etc.,  R.  Co.,  22  N.  Y.  191;  Schllchting  v.  Wintgen,  25 
Hun,  626  (though  the  death  did  not  occur  within  a  year  and  a  day  from 
the  time  of  the  injury);  Nashville,  etc.,  R.  Co.  v.  Prince,  2  Heisk.  580; 
Fowlkes  V.  Nashville,  etc.,  R.  Co.,  5  Baxt.  663;  Haley  v.  Mobile,  etc.,  R. 
Co.,  7  Baxt.  239;  International,  etc.,R.  Co.  v.  Kindred,  57  Tex.  491; 
Kansas  City,  Ft.  S.  &  M.  R.  Co.  v.  Daughtry,  88  Tenn.  721;  13  S.  W, 
Rep.  698;  Price  v.  Railroad  Co.,  33  S.  C.  562;  12  S.  E.  Rep.  413;  Reed 
B.  Northeastern  R.  Co.,  37  S.  C.  42;  16  S.  E.  Rep.  289. 

In  Tully  V.  Fitchburg  R.  Co.  (134  Mass.  499),  it  was  held  that  where 
a  person    struck  by  a  locomotive  engine  remains  in  a  perfectly  uncon- 


MEASURE   OF    DAMAGKS. 

(Kellcy.C.  B.,  [410]  and  Pi^'olt,  !'>.,  BnimwcU,  H.,di^. 
senting)  thai  tlic  i)It'u  was  a  p;oo(l  answer,  on  thu  ground 

scious  condition  until  his  death,  bis  administrator  Is  not  cntttlod,  Id  an 
iiclion  against  the  company,  to  recovL-r  substantial  daranRoH  In  the 
absence  of  evidence  of  any  considerable  expense  or  loss  between  the 
time  of  the  injury  and  the  death.  See  Bancroft  r.  Boston,  etc.  U.  Co., 
11  .Mien,  34;  Commonwealth  v.  Metropolitan  U.  Co.,  107  Mass.  2:\r,; 
Maher  V.  Boston  &A.  R.  Co.,  158  Mass.  SC;  32  N.  E.  Rep.  9fiO;  Uodoutt 
V,  Boston  &  A.  U.  Co.,  15G  Mass.  8G;  30  N.  E.  Hep.  224. 

Measure  of  Damages. —  The  measure  of  damages  recoverable  Is  the 
amount  which  the  deceased  would  probably  have  earned  durln<;  his  life 
time  for  the  benetlt  of  his  family,  takin<;;  into  consideration  his  age,  abil- 
ity, and  disposition  to  work,  habits  of  living  and  expenditure. —  Mans- 
field  Coal  &.  Coke  Co.  v.  McEnery,  !tl  Ta.  St.  185;  :'.G  Am.  Rep.  fit;2.  See 
Pierce  v.  Conners,  20  Colo.  178;  37  I'uc.  Rep.  721;  Hopue  r.  Chicago  4 
A.  R.  Co.,  32  Fed.  Rep.  305;  Central  R.  R.  o.  Rouse,  77  Ga.  393;  3  S.  E. 
Rep.  307;  Clapp  v.  Minneapolis  &  St.  L.  Ry.  Co.,  30  Minn.  6;  29  N.  W. 
Rep.  340;  Richmond  &  D.  C.  R.  Co.  v.  Hammond,  t)3  Ala.  181;  9  So.  Rep. 
577;  Pool  V.  Southern  Pac.  R.  Co.,  7  Utah,  303;  20  Pac.  Rep.  C64;  Black- 
well  V.  Lynchburg  &  I).  R.  Co.,  Ill  N.  C.  151;   IfiS.  E.  Rep.  12. 

Skill  and  capacity  (Skottowe  v.  Oregon,  etc.,  Ry.  Co.,  22  Ore.  430;  30 
Pac.  Rep.  222),  the  nature  of  the  calling  fWheelan  v.  Chicago,  etc.,  Ry. 
Co.,  85  la.  1(;7;  52  N.  W.  Rep.  Hi);  Louisville,  E.  &  St.  L.  R.  Co.  r. 
Clarke,  152  U.  S.  230;  14  S.  Ct.  Rep.  67'J),  and  qualiflcalions  of  deceased 
to  train  and  instruct  his  minor  children,  are  jjroper  elements  to  be  con- 
sidered in  estimating  damages. —  St.  Louis.  I.  M.  &  S.  Ry.  Co.  v.  Sweet, 
60  Ark.  550;  31  S.  W.  Rep.  571.  But  the  loss  of  the  society  and  com- 
panionship of  a  husband  and  father  (Atchison,  T.  &  S.  F.  R.  Co.  r.  Wil- 
son, 48  Fed.  Rep.  57;  4  U.  S.  App.  25;  1  C.  C.  A.  25;  Taylor  B.  &  H. 
Ry.  Co.  V.  Warner,  84  Tex.  122;  19  S.  W.  Rep.  449;  20  7d.  823;  Gulf,  C. 
&S.  F.  Ry.  Co.  V.  Finley  (Tex.  Civ.  App.),  32  S.  W.  Rep.  51,  and  the 
possibility  of  decendent's  having  received  a  government  pension  (St. 
Louis,  L  M.  &  S.  Ry.  Co.  v.  Maddry,  57  Ark.  30tJ;  21  S.  W.  Kep.  472),  or 
having  married,  if  he  had  lived,  are  not  such  elements.— Tennessee  C, 
L  &  R.  Co.  V.  Ilerndon,  100  Ala.  451;  14  So.  Rep.  287. 

An  instruction  to  this  effect  was  held  too  favorable  to  defendant  In 
Kleever  v.  Market  St.  R.  Co.  (59  Cal.  294),  as  the  statute  gave  to  the  jury 
the  power  to  assess  such  damages  as  "  under  the  circumstances  of  the 
case  may  be  just." 

"  The  reasonable  expectation  of  pecuniary  advanUge  from  the  continu- 
ance of  the  life  of  the  deceased  is  the  true  criterion  by  which  to  deU-rmlne 
the  amount  of  damages  to  be  given;  and  in  this  view  evidence  of  the  age, 
habits  of  industry,  means,  business,  etc.,  of  the  deceased  arc  held  to  be 
admissible."— 3  Wood  on  Railways,  p.  182'.»;  Burtln  c.  Wilmington,  etc., 
R.  Co.,  8  N.  C.  504;  and  see  Shaberc.St.  Paul,  etc.,  R.  Co.,  28  .Mian.  103; 


552  ACTION   FOR   INJURIES    CAUSING   DEATH. 

that  the  case  of  master  [441]  and  servant  did  not  come 
within    the  statute,   and  that  apart  from  the  statute   no 

9  N.  W.  Kep.  575;  Central  Railroad  v.  Thompson,  76  Ga.  770;  Baltimore 
&  R.  Turnpike  Road  v.  State,  71  Md.  573;  18  Atl.  Rep.  884;  Louisville  & 
N.  R.  Co.  u.  Orr,  91  Ala.  548;  8  So.  Rep.  360;  Lierman  v.  Chicago,  etc., 
Ry.  Co.,  82  Wis.  286;  52  N.  W.  Rep.  91;  Abbot  v.  McCadden,  81  Wis, 
663;  51  N.  W.  Rep.  1079;  Chattanooga  R.  &  C.  R.  Co.  v.  Clowdis,  90  Ga. 
258;  17  S.  E.  Rep.  88. 

The  value  of  the  life  of  the  deceased  having  due  regard  to  the  capacity 
and  disposition  of  such  deceased  person  to  be  useful,  to  labor  and  save 
money.— Holmes  v.  Oregon,  etc.,  Ry.  Co.,  6  Sawyer,  642;  5  Fed.  Rep. 
523. 

Damages  are  to  be  computed  as  if  the  husband  had  not  died  and  had 
brought  the  action  himself. —  East  Tenn.,  etc.,  R.  Co.  v.  Teppins,  10 
Lea,  58. 

In  Baltimore,  etc.,  R.  Co.  v.  Wightman  (29  Gratt.  431),  it  was  held  that 
damages  should  be  assessed  •*  by  fixing  the  same  at  such  sum  as  would  be 
equal  to  the  probable  earnings  of  the  deceased,  taking  into  consideration 
the  age,  business  capacity,  experience  and  habits,  health,  energy  and 
perseverance  of  the  deceased  during  what  would  probably  have  been  his 
lifetime.  And  by  adding  these  to  the  value  of  his  services  in  the  superin- 
tendence, attention  to,  and  care  of  his  family,  and  the  education  of  his 
children,  of  which  they  have  been  deprived  by  his  death." 

A  wife,  it  has  been  held,  is  not  prevented  from  maintaining  an  action 
for  the  negligent  killing  of  her  husband  by  the  fact  that  she  had  been 
living  in  separation  from  him. —  Dallas,  etc.,  Ry.  Co.  v.  Spicker,  61  Tex. 
427;  48  Am.  Rep.  297.  S.  P.,  East  Tenn.,  V.  &  G.  R.  R.  v.  Maloy,  77  Ga. 
237;  2  S.  E.  Rep.  941;  contra,  Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Floyd  (Tex. 
Civ.  App.),21  S.  W.  Rep.  644. 

Minor. —  The  measure  of  damages  in  case  of  the  death  of  a  minor  is 
the  probable  value  of  his  services  from  the  time  of  the  injury  until  his 
majority,  less  the  probable  cost  of  his  maintenance  during  the  same 
time.— Benton  v.  Chicago,  etc.,  R.  Co.,  55  la.  496;  Chicago  v.  Scholten, 
75  111.  469;  Rockford,  etc.,  R.  Co.  v.  Delaney,  82  111.  198;  Caldwell  v. 
Brown,  53  Pa.  St.  453;  Barley  u.  Chicago,  etc.,  R.  Co.,4Biss.  430;  Mayhew 
V.  Burns,  S.  C.  lud.  2  N.  E.  Rep.  793;  Stafford  v.  Rubens,  115  III.   196; 

3  N.  E.  Rep.  568;  Quin  v.  Moore,  15  N.  Y.  432;  Ford  v.  Monroe,  20  Wend. 
210;  Hall  v.  Galveston,  etc.,  Ry.  Co.,  39  Fed.  Rep.  18;  Birkett  v.  Knicker- 
bocker Ice  Co.,  110  N.  Y.  504;  18  N.  E.  Rep.  108;  Alabama,  Connellsville 
C.  &  L  Co.  V.  Pitts,  98  Ala.  285;  13  So.  Rep.  135;  Morgan  v.  Southern 
Pac.  R.  Co.,  95  Cal.  510;  30  Pac.  Rep.  603;  McCahill  v.  Detroit  City  Ry., 
96  Mich.  156;  55  N.  W.  Rep.  668;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Davis, 

4  Tex.  Civ.  App.  468;  23  S.  W.  Rep.  301;  Mobile  &  O.  R.  Co.  v.  Watly, 
69  Miss.  145;  13  So.  Rep.  825;  Holt  v.  Spokane  &  P.  Ry.  Co.  (Idaho), 
35  Pac.  Rep.  39;  Atrops  v.  Costello,  8  Wash.  149;  35  Pac.  Rep.  620; 


MEASURE   OF   DAMAGES  —  EVIDENCE.  G53 

action  Iiiy  (2).     This  judgment  does     [442]     not  seem  to 
bo    iillogether     satisfactory.     It  Bcems    to     l)o     the    law 

(c)  Osborne  t>.  GUIett,42  L.  J.  Ex. 58;  L.  K.  8  Exch.  88. 


Denver,  S.  P.  &  P.  R.  Co.  v.  Wilson,  12  Colo.  20;  20  Pac.  Uc-p.   840; 
Andrews  v.  Chicago,  etc.,  Ry.  Co.,  8G  la.  677;  63  N.  W.  Ht  p.  39y. 

And  to  this  mtiy  be  added  funeral  expenses,  for  nursing  and  medical 
eervices,  when  the  benellclary  is  legally  bound  to  pay  for  the  «aine.— 
Frick  v.  St.  Louis,  etc.,  R.  Co.,  75  Mo.  542;  Rains  v.  St.  Louis,  Iron 
Mountain,  etc.,  R.  Co.,  71  Mo.  1G4;  Little  Rock,  etc.,  R,  Co.  r.  Barker,  33 
Ark.  350;  Pennsylvania  v.  Lilly,  73  lud.  L'52;  St.  Louis,  Iron  Mountain, 
etc.,  R.  Co.  V.  Freeman,  30  Ark.  41.  (The  value  of  the  services  to  be 
8uch  as  is  ordinary  with  children  in  the  same  condition  and  station  iu 
life,  without  regard  to  any  peculiar  value  the  plaintiff  might  attach  lo 
the  child's  services.) 

There  is  no  compensation  for  the  loss  of  companionship,—  Little  Rock, 
etc.,  R.  Co.  V.  Barker,  33  Ark.  350.  In  this  case  $4,500  for  loss  of  .services 
by  death  of  child  five  years  old  through  the  negligence  of  the  railway 
company  was  held  excessive. 

In  Little  Rock,  etc.,  R.  Co.  v.  Barker  (39  Ark.  491),  it  was  held  that 
where  the  death  of  a  child  too  young  to  earn  anything  was  the  subject  of 
the  action,  the  damages  sustained  by  its  parents  by  loss  of  its  services 
during  minority  must  be  matter  of  conjecture,  and  the  testimony  of  wit- 
nesses unnecessary. 

Although  a  child  does  not  contribute  to  its  parents'  support  they  may 
recover  damages  for  its  wrongful  death. —  MoUie  Gibson  Con.  M.  &  M. 
Co.  r.  Sharp  (Colo.  App.),  38  Pac.  Rep.  850.  See  Chicago,  M.  &St.  P.  Ry. 
Co.  V.  Wilson,  35  111.  App.  346;  Hamilton  v.  Morgan's  L.,  etc.,  Co.,  42 
La.  An.  824;  8  So.  Rep.  586. 

In  Maryland  adult  children  have  been  entitled  to  recover  for  the  death 
of  the  parent.  The  statute  (Md.  Code,  Art.  65,  §§  1  and  2)  makes  no 
reference  to  the  age  or  condition  of  the  parties. —  Baltimore  &  Ohio  R, 
Co.  V.  State,  60  Md.  449. 

But  where  an  adult  lives  apart  from  his  parents,  and  in  no  way  con- 
tributes to  their  support  they  cannot  maintain  an  action  to  recover  dam- 
ages for  his  death.— Lehigh  Iron  Co.  v.  Rupp,  100  Pa.  St.  96;  Pennsyl- 
vania R.  Co.  V.  Adams,  55  Pa.  St.  499.  But  see  Lockwood  v.  New  Vork, 
etc.,  R.  Co.,  98  N.  Y.  523. 

Substantial  damages  can  not  be  recovered  by  the  collateral  kindred 
without  proof  that  they  were  supported  by  deceased  or  that  there  was  a 
probability  of  their  receiving  support  from  him  had  he  lived. —  Chiaigo 
r.  Scholten,  75  111.  468;  Chicago,  etc.,  R.  Co.  v.  .Moranda,  93  111.  302; 
Grotenkemper  v.  Harris,  25  Ohio  St.  510. 

But  the  mother  who  depended  upon  her  minor  child  for  assif^Uncc, 
may  recover  for  his  wrongful  death.—  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Comp- 


554  ACTION   FOR   INJURIES    CAUSING   DEATH. 

that  a  master  cannot  recover  for  loss  of  services  where 
[443]  the  servant  is  killed,  but  only  where  he  is  die- 
ton,  75  Tex.  G67;  13  S.  W.  Rep.  667;  Atlanta  &  C.  Air-Line  Ry.  Co.  v. 
Gravitt,  93  Ga.  369;  20  S.  E.  Rep.  550. 

Evidence. —  Evidence  showing  tlie  ability  of  deceased,  had  he  lived, 
to  render  pecuniary  aid  to  his  wife  and  mother,  has  been  held  proper.— 
Dallas  R.  Co.  v.  Spicker,  61  Tex.  427. 

Evidence  to  show  the  deceased  to  have  been  a  kind  husband  and 
father  is  also  held  admissible. —  Cook  v.  Clay  Street  Hill  R.  Co.,  60  Cai. 
604.  S.  P.,  Missouri  Pac.  Ry.  Co.  v.  Bond,  2  Tex.  Civ.  App.  104;  20  S. 
W.  Rep.  930. 

It  may  be  stated  as  a  general  rule  that  every  fact  relating  to  the  pecu- 
niary value  of  the  deceased  to  those  suing  on  account  of  his  death,  is 
admissible. —  San  Antonio  &  A.  P.  Ry.  Co.  v.  Long,  4  Tex.  Civ.  App.  497; 
27  S.  W.  Rep.  113;  26  Id.  44;  Pennsylvania  Co.  v.  Keane,  143  111.  172;  32 
N.  E.  Rep.  260;  Chicago  &  G.  W.  R.  Co.  v.  Travis,  44  111.  App.  466; 
Christian  v.  Columbus  &  R.  Ry.  Co.,  90  Ga.  124;  15  S.  E.  Rep.  701;  Lake 
Erie  &  W.  R.  Co.  v.  Mugg,  132  Ind.  168;  31  N.  E.  Rep.  564;  Simmons  v. 
McConnell,  86  Va.  494;  10  S.  E.  Rep.  838;  Soeder  v.  St.  Louis,  etc.,  Ry. 
Co.,  100  Mo.  673;  13  S.  W.  Rep.  714;  Hudson  ■;;.  Houser,  123  Ind.  309; 
24  N.  E.  Rep.  243;  Van  Gent  v.  Chicago,  etc.,  Ry.  Co.,  80  la.  526;  45  N. 
W.  Rep.  913;  Augusta  Ry.  Co.  v.  Glover,  92  Ga.  132;  18  S.  E.  Rep.  406. 

But  evidence  as  to  the  state  of  health  of  the  mother  of  a  minor  in  a 
suit  by  her  to  recover  damages  for  his  death  is  not  admissible. —  Benton 
V.  Chicago,  etc.,  R.  Co.,  55  la.  496. 

Nor  for  the  number  of  intestate's  family  to  show  the  value  of  his  life  to 
his  estate. —  Beems  v.  Chicago,  etc.,  R.  Co.,  58  la.  150;  Klepsch  v. 
Donald,  4  Wash.  St.  436 ;  30  Pac.  Rep.  991.  But  the  majority  of  the  cases 
hold  otherwise.— O'Mellia  v.  Kansas  City,  etc.,  R.  Co.,  115  Mo.  205;  21 
S.  W.  Rep.  503;  Missouri  Pac.  Ry.  Co.  v.  Baier,  37  Neb.  235;  55  N.  VV. 
Rep.  913;  Chilton  v.  Union  Pac.  Ry.  Co.,  8  Utah,  47;  29  Pac.  Rep.  963; 
Tetherow  v.  St.  Joseph  &  D.  M.  Ry.  Co.,  98  Mo.  74;  11  S.  W.  Rep.  310. 
See  Schlereth  v.  Missouri  Pac.  Ry.  Co.  (Mo.),  19  S.  W.  Rep.  1134. 

Evidence  of  the  pecuniary  condition  of  deceased's  family  is  in  another 
case  held  not  admissible. —  Chicago,  etc.,  R.  Co.  v.  Moranda,  93  111.  302; 
Chicago  V.  McCuUoch,  10  111.  App.  459. 

Nor  of  the  pecuniary  condition  of  the  defendants  unless  exemplary 
damages  are  allowed. —  Morgan  v.  Durfee,  69  Mo.  469.  But  see  Cooper 
V.  Lake  Shore  &  M.  S.  Ry.  Co.,  66  Mich.  261 ;   33  N.  W.  Rep.  306. 

Nor  the  letters  from  the  deceased  son  to  his  father  tending  to  show 
his  affection  and  good  intentions  towards  his  father  and  family. —  Quinn 
V.  Power,  29  Hun,  183. 

Nor  is  it  admissible  to  show  the  general  reputation  of  deceased  as  a 
citizen.— Vawter  v.  Hultz,  112  Mo.  633;  20  S.  W.  Rep.  689;  see  Hardy  v. 
Minneapolis  v.  St.  L.  Ry.  Co.,  36  Fed.  Rep.  657. 


DAMAGES JURISDICTION  —  LIMITATION  J.*! 

ablod  ;  and,  therefore,  as  far  as  the  claim  to  damages  f<»r  Iosh 
of  serv-     [444]     ices,  it  would  seom  (notwithstanding  tho 

Nor  to  Introduce  the  verdict  of  a  coroner's  jury,  that  dvcfaAed  wui 
accidentally  killed.—  Memphis  &  C.  R.  Co.  v.  Woraack,  «4  Ala.  149;  \  So. 
Rep.  018. 

Jurisdiction. —  It  has  been  held  that  actions  of  this  kind  art-  notmala- 
tainablu  out  of  the  State  in  which  ttie  injury  occurred. —  I.,e  FureBl  r. 
Tolman,  117  Mass.  109;  McCarthy  v.  Chicago,  etc.,  H.  Co.,  18  Kan.  IC; 
Allen  V.  Pittsbursh,  etc.,  R.  Co.,  45  Md.  41  ;  Ni-edham  c.  Grand  Trunk 
R.  Co.,  38  Vt.  294;  Richanl.-^on  v.  New  York  Cent.  R.  Co.,  88  Mas8.  85: 
Campbell  v.  Rogers,  2  Handy,  110;  Woodward  v.  Michigan,  etc.,  R.  Co., 
10  Ohio  St.  121;  Hover  w.  Pennsylvania  Co.,  25  Ohio  St.  CGT;  Willis  c. 
Missouri  Pac.  R.  Co.,  61  Tex.  432;  Nashville,  etc.,  R.  Co.  p.  Eakia,  G 
Coldw.  582;  Gates  v.  Union  Pac.  Ry.  Co.,  104  Mo.  614;  IG  S.  W.  R«p. 
487;  De  Ham  v.  Mexican  Nat.  R.  Co.  (Tex.  Civ.  App.),  22  S.  W.  Rop. 
249;  Bell  v.  Gulf,  etc.,  Ry.  Co.,  4  Tex.  Civ.  App.  231  ;  22  S.  W.  Rep.  I0G2; 
Maysville  Street  R.  &  T.  Co.  v.  Marvin,  59  Fed.  Rep.  91;  8  C.  C.  A.  21; 
Hamilton  v.  Hannibal  &  St.  J.  R.  Co.,  39  Kan.  50;  18  Pac.  Rep.  57; 
Hulbert  v.  City  of  Topeka,  34  Fed.  Rep.  510. 

Thou<;h  the  death  tot)k  place  upon  the  high  seas. —  Mahler  r.  Norwich, 
etc.,  Transp.  Co.,  45  Barb.  220;  35  N.  Y.  352,  See  Cavanaugh  c.  Ocean 
Steam  Nav.  Co.,  19  Civil  Proc.  R.  391;  13  N.  Y.  S.  Rep.  540. 

Some  courts  have  held  that  such  actions  are  maintainable  when  tho 
statutes  of  the  State  where  the  injury  occurred,  and  where  suit  is  brousht 
are  similar. —  Leonard  v.  Columbia  Steam  Nav.  Co.,  84  N.  Y.  48;  38  Ara. 
Rep.  491 ;  Debevoise  v.  New  Y'ork,  Lake  Erie,  etc.,  R.  Co.,  98  N.  Y.  377; 
Western,  etc.,  R.  Co.  v.  Strong,  52  Ga.  401;  Bruce's  Admr.  c.  Itallroad 
Co.  (Ky.  Ct.  App.),  20  Rep.  457;  Wooden  i\  Western  N.  Y.,  etc.  R.  Co., 
120  N.  Y.  10;  20  N.  E.  R(  p.  1050;  Cincinnati,  II.  &  I).  R.  Co.  r.  McMullen, 
117  lud.  439;  20  N.  E.  Rep.  287.  See  Missouri  Pac.  Ry.  Co.  r.  Lewis,  24 
Neb.  848;  40  N.  W.  Rep.  401.  Contra,  Usher  v.  West  Jersey  R.  Co.,  120 
Pa.  St.  206;   17  Atl.  Rep.  597;  24  W.  N.  C.  57. 

The  better  view  is  that  "  where  a  right  of  action  has  become  tlxcd, 
either  by  the  common  law  or  the  statute,  and  a  legal  llabllly  has  been 
Incurred,  that  liability  may  be  enforced  and  the  right  of  action  pursued 
in  any  court  which  has  jurisdiction  of  such  matters  and  can  obtain  jurln- 
dlction  of  the  parties."—  Dennick  v.  Central  R.  R.  Co.,  103  U.  S.  11;  see 
Shedd  V.  Moran,  10  111.  App.  018. 

Limitation.—  The  statutes  of  the  various  States  generally  provide  a 
certain  time  within  which  such  actions  shall  be  l)rought. 

In  case  they  are  silent,  the  statute  l)egins  to  run  from  the  time  of  the 
death.—  Waldo  t?.  Good.sell,  33  Conn.  432;  see  Needham  r.  Grand  Trunk 
R.  R.  Co.,  38  Vt.  294;   Atlanta,  etc.,  R.  Co.  v.  Venable,  G7  Ga.  697:  Be*l 
tJ.Town  of  Klnston,  100  N.  C.  205;  10  S.  E.  Rep.  997;  I^ulsvlUe  &  N.   U 
Co.  V.  Sanders,  80  Ky.  259;  5  S.  W.  Rep.  503. 


556  ACTION   FOR   INJURIES    CAUSING   DEATH. 

powerful  reasoning  of  Bramwell,  B. ,  and  the  admission  of 
Pigott,  B.,     [445]     that  the  distinction  is  "shadowy") 

Such  an  action  may  be  brought  in  a  different  State  from  that  in  which 
the  injury  occurred  within  three  years,  that  being  the  time  prescribed  by 
the  statute  in  latter  State,  although  the  former  State  gives  only  two 
years  for  the  bringing  of  snch  actions. —  Theroux  v.  Northern  Pac.  R. 
Co.,  64  Fed.  Eep.  84. 

Statutes.  —  (1)  Alabama. —  Civil  Code,  Ala.  1886 :  —  See  also  Liability 
of  Fellow-Servants,  ante,  p.  243. 

"Sec.  2588.  Suits  for  injuries  causing  death  of  minor  child, — When 
the  death  of  a  minor  child  is  caused  by  the  wrongful  act  or  omission  or 
negligence  of  any  person  or  persons,  or  corporation,  his  or  their  servants 
or  agents,  the  father,  or  the  mother  in  the  cases  mentioned  in  preced- 
ing section  (death,  insanity,  etc.,  of  father)  or  the  personal  repre- 
sentative of  such  minor,  may  sue  and  recover  such  damages  as  the 
jury  may  assess,  but  a  suit  by  the  father  or  mother  in  such  case  is  a  bar 
to  a  suit  by  the  personal  representative. 

"  Sec.  2589.  Action  for  wrongful  act,  omission  or  negligence  causing 
death.  —  A  personal  representative  may  maintain  an  action,  and  recover 
such  damages  as  the  jury  may  assess  for  the  wrongful  act,  omission,  or 
negligence  of  any  person,  or  corporation,  his  or  their  servants  or  agents, 
whereby  the  death  of  his  testator  or  intestate  was  caused  if  the  testator 
or  intestate  could  have  maintained  an  action  for  such  wrongful  act, 
omission  or  negligence  if  it  had  not  caused  death :  such  action  shall  not 
abate  by  the  death  of  the  defendant,  but  may  be  revived  against  this  per- 
sonal representative;  and  maybe  maintained  though  there  has  not  been' 
prosecution,  or  conviction,  or  acquittal  of  the  defendant  for  such  wrong- 
ful act,  or  omission  or  negligence;  and  the  damages  recovered  are  not 
subject  to  the  payment  of  the  debts  or  liabilities  of  the  testator  or  intes- 
tate but  must  be  distributed  according  to  the  statute  of  distributions. 
Such  action  must  be  brought  within  two  years  from  and  after  the  death 
of  the  testator  or  intestate." 

(2)  ,4n0ona.— Rev.  Statutes,  1887.  Title  XXXVI.  Injuries  resulting 
in  death: — 

"Sec.  2145.  An  action  for  actual  damages  on  account  of  injuries  caus- 
ing the  death  of  any  person,  may  be  brought  in  the  following  cases:  — 

"  1.  When  the  death  of  any  person  is  caused  by  the  negligence  or  care- 
lessness of  the  proprietor,  owner,  charterer  or  hirer  of  any  railroad, 
steamboat,  stage-coach  or  other  vehicle  for  the  conveyance  of  goods  or 
passengers,  or  by  unfitness,  gross  negligence  or  carelessness  of  their 
servants,  or  agents. 

"  2.  When  the  death  of  any  person  is  caused  by  the  wrongful  act,  neg- 
ligence, un-killfulness  or  default  of  another. 

"Sec.  2146.  The  wrongful  act,  negligence,  carelessness,  unskillfulness 
or  default  mentioned  in  the  preceding  section  must  be  of  such  a  char- 


STATUTES.  557 

that  the  law  is  tlint  the  master  cannot  recover.     Rut  in  the 
above  case  there  [44G]  was  also  ii  cliiini  for  burial  uxpcoHCH 


•cter  as  would,  If  death  had  not  ensued,  have  entitled  the  party  Injured 
to  maintain  action  (or  Injury. 

"Sec.  2147.  When  death  Is  caused  by  the  willful  act  or  omission,  or 
gross  negligence  of  the  defendant,  exemplary  aa  well  as  actual  damagM 
may  be  recovered. 

«'  Sec.  2148.  The  action  may  be  commenced  and  prosecuted,  althouRh 
the  death  shall  have  been  caused  under  such  clrcumHtances  as  amounui 
In  law  to  a  felony,  and  without  regard  to  any  criminal  proceedlnu  that 
may  or  may  not  be  had  in  relation  to  the  homicide. 

"Sec.  2149.  The  action  shall  be  for  the  sole  and  exclusive  benefit  of  the 
surviving  husband,  wife,  children  and  parents  of  the  person  whoM*  death 
shall  have  been  so  caused,  and  the  amount  recovered  therein  shall  not 
be  liable  for  the  debts  of  the  deceased. 

"Sec.  2150.  The  action  may  be  brought  by  all  the  parties  entitled 
thereto,  or  by'any  one  or  more  of  them  for  the  benefit  of  all. 

"  Sec.  2151.  If  the  parties  entitled  lo  tlie  benelltof  the  action  shall  fall 
to  commence  the  same  within  six  months  after  the  death  of  the  deceaj>ed, 
It  shall  be  the  duty  of  the  executor  or  administrator  of  the  deceased  to 
commence  and  prosecute  the  action  unless  requested  by  all  the  parties 
entitled  thereto  not  to  prosecute  the  same. 

"  Sec.  2152.  The  action  shall  not  abate  by  the  death  of  either  party  to 
the  record  if  any  person  entitled  to  the  benetlt  of  the  action  survives. 
If  the  plalnlifE  die  pending  the  writ,  when  there  is  only  one  plaintiff, 
some  one  or  more  of  the  parties  entitled  to  the  money  recovered  may,  by 
order  of  the  court,  be  made  plaintiff  and  the  suit  bo  prosecuted  to 
judgment  in  the  name  of  such  plaintiff  for  the  benefit  of  the  p<?r»on« 
entitled. 

"Sec.  2153.  If  the  sole  plaintiff  dies  pending  the  suit  and  ho  Is  the 
only  party  entitled  to  the  money  recovered,  the  suit  shall  abate. 

"Sec.  2154.  If  the  defendant  die  pending  the  suit  his  executor  or 
administrator  may  be  made  a  party  and  the  suit  be  prosccnU'd  to  judg. 
ment  as  though  such  defendant  had  continued  alive.  The  judiiment  In 
such  case,  if  rendered  In  favor  of  the  plaintiff,  shall  be  paid  in  due 
course  of  administration. 

"  Sec.  2155.  The  jury  may  give  such  damages  as  they  may  think  pro- 
portioned to  the  injury  resulting  from  such  death;  and  the  amount  so 
recovered  shall  be  divided  among  the  persons  entitled  to  the  l>eneflt  of 
the  action,  or  such  of  them  as  shall  then  be  alive,  in  such  shares  ajj  the 
jury  shall  And  by  their  verdict." 

(3)  Arkansas.—  AT)i.  Dig.  Stat.,  1894:  — 

"  Sec.  5908.  For  wrongs  done  to  the  person  or  property  of  another,  an 
action  may  be  maintained  against  the  wrong-doers,  and  such  action  may 
be  brought  by  the  person  injured,  or  after  his  death,  by  his  executor  or 


558  ACTION    FOR    INeJIJKIES    CAUSING    DEATH. 

of  the  daughter,  and  the  plaintiff  claimed  for  expenses  for 
burying  his  daughter  [447]   (not  as  his  servant),  and  it  does 

administrator,  in  the  same  manner  and  with  like  effect,  in  all  respects, 
as  actions  founded  on  contracts. 

Sec.  6909  provides  preceding  section  shall  not  apply  to  actions  for 
slander. 

"  Sec.  5910.  When  any  adult  person  be  killed  by  railroad  trains  running 
in  this  State,  the  husband  may  sue  for  damages  to  a  wife-  If  the  adult 
be  wounded  he  may  sue  in  his  own  name. 

"  Sec.  5911.  Whenever  the  death  of  a  person  shall  be  caused  by 
wrongful  act,  neglect  or  default  and  the  act,  neglect  or  default  is  such 
as  would,  if  death  had  not  ensued,  have  entitled  the  party  injured  to 
maintain  an  action  and  recover  damages  in  respect  thereof,  then  and  in 
every  such  case  the  person  who,  or  company  or  corporation  which  would 
have  been  liable  if  death  had  not  ensued,  shall  be  liable  to  an  action  for 
damages,  notwithstanding  the  death  of  the  person  injured,  and  although 
the  death  shall  have  been  caused  under  such  circumstances  as  amount  in 
law  to  a  felony. 

"  Sec.  5912.  Every  such  action  shall  be  brought  by  and  in  the  name  of 
the  personal  representatives  of- such  deceased  person,  and,  if  there  be 
no  personal  representatives,  then  the  same  may  be  brought  by  the  heirs 
at  law  of  such  deceased  person;  and  the  amount  recovered  in  every 
such  action  shall  be  for  the  exclusive  benefit  of  the  widow  and  next  of 
kin  of  such  deceased  person;  and  shall  be  distributed  to  such  widow 
and  next  of  kin,  in  the  proportion  provided  by  law  in  relation  to  the 
distribution  of  personal  property  left  by  persons  dying  intestate;  and 
in  every  such  action  the  jury  may  give  such  damages  as  they  shall  deem 
a  fair  and  just  compensation,  with  reference  to  the  pecuniary  injuries 
resulting  from  such  death  to  the  wife  and  next  of  kin  of  such  deceased 
person. 

"  Provided,  every  such  action  shall  be  commenced  within  two  years 
after  the  death  of  such  person." 

(i)  California.— Code  Civil  Pro.  1885,  p.  113:— 

"  Sec.  376.  A  father,  or  in  case  of  his  death  or  desertion  of  his  family, 
the  mother,  may  maintain  an  action  for  the  injury  or  death  of  a  minor 
child,  and  a  guardian  for  the  injury  or  death  of  his  ward,  when  such  injury 
or  death  is  caused  by  the  wrongful  act  or  neglect  of  another.  Such  action 
may  be  maintained  against  the  person  causing  the  injury  or  death,  or  if 
such  person  be  employed  by  another  person  who  is  responsible  for  his 
conduct,  also  against  such  other  person. 

"  Sec.  377.  When  the  death  of  a  person  not  being  a  minor  is  caused  by 
the  wrongful  act  of  another,  his  heirs  or  personal  representatives  may 
maintain  an  action  for  damages  against  the  person  causing  the  death;  or 
if  such  person  be  employed  by  another  person  who  is  responsible  for  his 
conduct  then  also  against  such  other  person.     In  every  action  under  this 


STATUTES.  rj^'J 


not  clearly  appear  why  the  court  ( not  apparently  upon  tho 
authority  of    Dalton   /•.  [448]   S.  E.  Ky.,  suprn,  p.  bih,  at) 


and  the  preceding  section  such  damages  may  bo  given  as  under  all  clr- 

cumsiiincc-<  of  the  case  may  be  just. 

•'Sec.  33i»,  p.  98.  An  action  to  recover  damages  for  the  death  of  one 
cau.sed  by  the  wrongful  act  or  neglect  of  another  must  be  brought  within 
two  years." 

(5)  Colorado.—  Gen.  Stat.  1883,  Ch.  27,  1030-1033.  (Mill's  AnnoUted 
SUtutes,  1891,  §§  1508-1512):— 

"  Sec.  1.  Whenever  any  person  shall  die  from  any  Injury  resulting  from 
or  occasioned  by  the  negligence,  unskillfuiness,  or  criminal  Intent  of  nny 
otllcer,  agent,  servant,  or  employe  wliilst  running,  conducting,  or  manag- 
ln;i  any  locomotive,  car,  or  train  of  cars,  or  of  any  driver  of  any  coach 
or  other  public  conveyance  wliilst  in  charge  of  the  same  as  a  driver,  and 
when  any  passenger  shall  die  from  any  injury  resulting  from  orocca.sloned 
by  any  defect  or  insulliciency  in  any  railroad,  of  any  part  thereof,  or  In 
any  locomotive  or  car,  or  in  any  stage  coach,  or  other  public  convej'ance, 
the  corporation,  individual,  or  individuals  in  whose  employ  any  such 
officer,  agent,  servant,  employe,  master,  pilot,  engineer  or  driver  shall  Ik; 
at  any  time  such  injury  is  committed,  or  who  owns  any  such  railroad, 
locomotive,  car,  stage-coach,  or  other  public  conveyance,  at  the  time 
any  such  injury  is  received,  and  resulting  from,  or  occa.sioned  by,  defect 
or  Insufficiency  above  described,  shall  forfeit  and  i)ay  for  every  person 
and  passenger  so  injured  the  sum  of  not  exceeding  live  thousand  (?5,ono) 
dollars,  and  not  less  than  three  thousand  (§3,000)  dollars,  which  may  be 
sued  for  and  recovered. 

"  First.  By  the  husband  or  wife  of  deceased;  or, 

"  Second.  If  there  be  no  husband  or  wife,  or  he  or  she  falls  to  sue 
within  one  year  after  such  death,  then  by  the  heir  or  heirs  of  the  de- 
ceased; or 

"Third.  If  such  deceased  be  a  minor  or  unmarried,  then  by  the  father 
and  mother,  who  may  jcjin  in  the  suit,  and  each  shall  have  an  equal  inter- 
est In  tho  judgment;  or,  if  cither  of  them  be  dead,  then  by  the  survivor. 
In  suits  instituted  under  this  section,  it  shall  be  competent  for  the  de- 
fendant, for  his  defense,  to  show  that  the  defect  or  Insufficiency  named 
in  the  section  was  not  a  negligent  defect  or  Insufficiency. 

"  Sec.  2.  Whenever  the  death  of  a  person  shall  be  caused  by  a  wrongful 
act,  neglect,  or  default  of  another,  and  the  act,  neglect,  or  default  is  such 
as  would  (if  death  had  not  ensued)  have  entitled  the  party  injured  to 
maintain  an  action  and  recover  damages  in  respect  thereof,  then  and  in 
every  such  case,  the  person  who,  or  the  corporation  which,  would  hare 
been  liable  if  death  had  not  ensued,  shall  be  liable  to  an  action  for  dam- 
ages, notwithstanding  the  death  of  the  person  Injured. 

"Sec.  3.  All  damages  accruing  under  the  last  preceding  section  shall 
be  sued  for  and  recovered  by  the  same  parties  and  In  the  same  manner 


560  ACTION   FOR    INJURIES    CAUSING   DEATH. 

that  case  was  not  cited,  but  upon  the  ground  that  the  death 
of  the  daughter  was  in-     [449]     stantaneous)  held  he  could 

as  provided  in  the  first  section  of  this  act,  and  in  every  snch  action  the 
jury  may  give  such  damages  as  they  may  deem  fair  and  just  (not  exceed- 
ing five  thousand  ($5,000)  dollars  with  reference  to  the  necessary  injury 
resulting  from  such  death,  to  the  surviving  parties,  vy^ho  may  be  entitled 
to  sue ;  and  also  having  regard  to  the  mitigating  or  aggravating  circum- 
stances attending  any  such  wrongful  act,  neglect  or  default. 

"  Sec.  4.  All  actions  provided  for  by  this  act  shall  be  brought  within 
two  years  from  the  commission  of  the  alleged  negligence  resulting  in  the 
death  for  which  suit  is  brought." 

Mills  Annotated  Statutes,  1891,  §  1512.  Exemplary  damages. —  That  in 
all  civil  actions  in  which  damages  shall  be  assessed  by  a  jury  for  a  wrong 
done  to  the  person,  or  to  personal  or  real  property,  and  the  injury  com- 
plained of  shall  have  been  attended  by  circumstances  of  fraud,  malice  or 
insult,  or  a  wanton  and  reckless  disregard  of  the  injured  party's  rights 
and  feelings,  such  jury  may  in  addition  to  the  actual  damages  sustained 
by  such  party,  award  him  reasonable  exemplary  damages." 

(6.)  Connecticut. —  Gen.  Stat,  Conn,,  Rev.  1887: — 

•'  Sec.  1008.  All  actions  for  injury  to  the  person,  whether  the  same  do 
or  do  not  instantaneously  or  otherwise  result  in  death,  to  the  reputation, 
or  to  the  property,  and  actions  to  recover  damages  for  injury  to  the  per- 
son of  the  wife,  child  or  servant  of  any  person,  shall  survive  to  his  exe- 
cutor or  administrator,  provided  the  cause  of  action  shall  not  have  arisen 
more  than  one  year  before  the  death  of  the  deceased ;  but  all  damages  for 
an  injury  resulting  in  death,  recovered  in  an  action  brought  by  any  exec- 
utor or  administrator,  shall  enure  to  the  benefit  of  the  husband,  or 
widow,  and  heirs  of  the  deceased  person,  after  deducting  the  costs  and 
expenses  of  the  suit  as  follows :  half  to  the  husband  or  widow,  and  half 
to  the  lineal  descendants  of  the  deceased,  per  stirpes;  but  if  there  be  no 
descendants,  the  whole  shall  go  to  the  husband  or  widow,  and  if  no 
husband  or  widow,  to  the  heirs  according  to  the  laws  regulating  the 
distribution  of  intestate  personal  estate. 

"  Sec.  1009.  In  all  actions  by  an  executor  or  administrator  for  injuries 
resulting  in  death  from  negligence  such  executor  or  administrator  may 
recover  from  the  party  legally  in  fault  for  such  injuries,  just  damages  not 
exceeding  five  thousand  dollars,  to  be  distributed  as  is  provided  in  the 
preceding  section ;  provided  that  no  action  shall  be  brought  upon  this 
statute  but  within  one  year  after  the  neglect  complained  of ;  and  provided 
further,  that  if  suit  for  the  injuries  caused  by  such  neglect  shall  be 
pending  when  the  death  occurs,  and  the  executor  or  administrator  of 
such  deceased  person  shall  enter  and  prosecute  the  same  to  final  judg- 
ment, the  damages  recovered  in  such  suit  shall  be  distributed  as 
provided  in  said  section. 

"  Sec.  1383.  No  suit  against  a  railroad  company  for  damages  for  the 


STATITES.  561 

not  recover.     The  attention  of  the  Court  wa**  not  called  to 
two  American  cases,  viz.,     [450]     Murpliy  v.  New  Haven 


lo«8  of  any  life  shall  bf  brought  by  tlie  executor  or  admlnl.Mtrntor  of  iho 
deceased  person  except  within  elf^hteen  mouths  from  and  after  tin- tl«-«ih 
of  such  person." 

(7)  Ddaxoarc. —  Rev.  Code,  1871,  p.  r,44,  .\ct  of  January,  1800:— 

"  Sec.  I.  That  no  action  hereafter  brought  to  recover  dumagcH  for  In- 
juries to  the  person  by  negligence  or  default,  shall  abate  by  reason  of  the 
death  of  the  plaintiff;  but  the  personal  representatives  of  the  doceaMcd 
may  be  substituted  as  plaintiff  and  prosecute  the  suit  to  final  judgment 
and  satisfaction. 

"  Skc.  2.  Whenever  death  shall  be  occasioned  by  unlawful  violence  or 
ncgligeuce,  and  no  suit  be  brought  by  the  party  Injured  to  recover  dam- 
ages during  his  or  her  life,  the  widow  of  any  such  deceased  pi-rson,  or,  If 
there  be  no  widow,  the  personal  representatives  may  maintain  an  action 
and  recover  damages  for  the  death  thus  occasioned." 

(8)  Florida.— 'Rttx.  Stats.  1802:  — 

••  Sec.  2342.  Whenever  the  death  of  any  person  In  this  8tat«  shall  be 
caused  by  the  wrongful  act,  negligence,  carelessness  or  default  of  any 
Individual  or  individuals,  or  by  the  wrongful  act,  negligence,  careless- 
ness or  default  of  any  corporation,  or  by  the  wrongful  act,  negligence, 
carelessness  or  default  of  any  agent  of  any  corporation  acting  in  hLs 
capacity  of  agent  of  such  corporation,  and  the  act,  negligence,  carelcM- 
ness,  or  default  is  such  as  would,  if  death  had  not  en-ued,  have  entitled 
the  party  Injured  thereby  to  maintain  an  action  for  damages  In  res|H.'Ct 
thereof,  then  and  in  every  such  case  the  person  or  persons  who,  or  cor 
poration  which  would  have  been  liable  in  damages  If  death  had  not 
ensued,  shall  be  liable  to  an  action  for  damages  notwithstanding  the 
death  shall  have  been  caused  under  such  circumstances  as  make  It  Inlaw 
amount  to  a  felony. 

"  Sec.  2343.  Every  such  action  shall  be  brought  by  and  In  the  name  of 
the  widow  or  husband,  as  the  case  may  be,  and  where  there  Is  nelthf-ra 
widow  or  husband  surviving  the  deceased,  then  the  minor  child  or  chil- 
dren may  maintain  an  action ;  and  where  there  Is  ucilher  a  widow  or  hus- 
band or  minor  child  or  cliihiren,  then  the  action  may  be  maintained  by 
any  person  or  persona  dependent  on  such  person  killed  for  asupixirt; 
and  where  there  is  neither  of  the  above  class  of  persons  to  sue,  then  the 
action  may  be  maintained  by  the  executor  or  administrator  as  the  case 
may  be  of  the  person  so  killed;  and  lu  every  such  action  the  jury  shall 
give  snch  damages  as  the  party  or  parties  entitled  to  sue  may  have 
sustained  by  reason  of  the  death  of  the  party  killed.  Any  action  Insti- 
tuted under  this  article,  by  or  in  behalf  of  a  person  or  persons  under 
twenty-one  years  of  age  shall  be  brought  by  and  In  the  name  of  a  next 
j  friend. 

!      "  Sec.  2344.  That  no  action  provided  for  by  this  article  shall  be  broagbt 
i  30 


562  ACTION    FOR   INJURIES    CAUSING   DEATH. 

Co.  (a),  and  Whitford  v.  Panama  Ry.  Co.  (5),  where  it 
has  been  pointed  out  that  death  is  not     [451]     absolutely 

(o)  Marphy   v.    New   Haven    Co.,  30  (6)  Whitford   v.  Panama  Ry.  Co.,  23 

Conn,  lat;  [see  ante,  p.  440.  (a)].  N.  Y.  486;  [see  ante,  p.  440  (6)]. 

after  the  expiration  of  two  years  from  the  date  of  the  death  of  the  party 
from  whose  death  such  action  shall  accrue. 

"  Sec.  2345.  No  person  shall  recover  damages  of  a  railroad  company  for 
injury  to  himself  or  his  property  when  the  same  is  done  by  his  consent 
or  is  caused  by  his  own  negligence.  If  the  complainant  and  the  agents 
of  the  company  are  both  at  fault,  the  former  may  recover,  but  the  dam- 
ages shall  be  diminished  by  the  jury  trying  the  case  in  proportion  to  the 
amount  of  default  attributable  to  him. 

"  Sec.  2346.  If  the  person  injured  is  himself  an  employe  of  the  com- 
pany, and  the  damage  was  caused  by  another  employe,  and  without 
fault  or  negligence  on  the  part  of  the  person  injured,  his  employment  by 
the  company  shall  be  no  bar  to  the  recovery,  and  no  contract  which 
restricts  such  liability  shall  be  legal  or  binding.  " 

Appendix,  Chapter  4071. 

"  Sec.  1.  A  railroad  company  shall  be  liable  for  any  damage  done  to 
persons,  stock  or  other  property,  by  the  running  of  the  locomotives,  or 
cars  or  other  machinery  of  such  company,  or  for  damage  done  by  any 
person  in  the  employment  and  service  of  such  company,  unless  the  com- 
pany shall  make  it  appear  that  their  agents  have  exercised  all  ordinary 
and  reasonable  care  and  diligence,  the  presumption  in  all  cases  being 
against  the  company. 

(9)  Georgia.— Code  1882,  §  2971,  p.  746:  — 

"  Sec.  2971.  A  widow,  or  if  no  widow,  a  child  or  children,  may  recover 
for  the  homicide  of  the  husband  or  parent,  and  if  suit  be  brought  by  the 
widow  or  children  and  the  former  or  one  of  the  latter  dies  pending  the 
action,  the  same  shall  survive  in  the  first  case  to  the  children,  and  in  the 
latter  case  to  the  surviving  child,  or  children.  The  plaintiff,  whether 
widow  or  child,  or  children,  may  recover  the  full  value  of  the  life  of  the 
deceased  as  shown  by  the  evidence.  In  the  event  of  a  recovery  by  the 
widow,  she  shall  hold  the  amount  recovered  subject  to  the  law  of  descents 
just  as  if  it  had  been  personal  property  descending  to  the  widow  and 
children  from  the  deceased,  and  no  recovery  had  under  the  provisions  of 
this  section  and  the  law  of  which  it  is  amendatory,  shall  be  subject  to  any 
debt  or  liability  of  any  character  of  the  deceased  husband  or  parent. 

"  Sec.  2972.  If  the  plaintiff,  by  ordinary  care,  could  have  avoided  the 
consequences  to  himself  caused  by  the  defendant's  negligence,  he  is  not 
entitled  to  recover.  But  in  other  cases  the  defendant  is  not  relieved, 
although  the  plaintiff  may  in  some,  way  have  contributed  to  the  injury 
sustained. 

"  Sec.  2970.  If  the  injury  amounts  to  a  felony  as  defined  by  this  code, 


STATUTES.  503 

instantaneous  with  the  injury,  and  there  must  ho  a  moment 
of  time  in  which  the  deceased  had  a  right  of    [452]    action 

the  person  injured  must  either  simultaneously  or  concurrently  or  previ- 
ously prosecute  for  the  same,  or  alle;:e  ii  ::oo(l  excuse  for  the  fallun;  ho 
to  prosecute;  prodded,  that  this  section  shall  not  apply  to  tortti  com- 
mltted  by  railroad  corporations  or  other  incorporated  companies  or  their 
agents  or  employes,  nor  shall  the  same  apply  to  natural  persons." 

[Failure  to  allege  prosecution  amendable  In  declaration  and  plea 
admitting  prosecution  first,  plaintiff  need  not  prove  it. —  5«  Ga.  fiS'J. 

This  section  construed  where  suit  brought  for  homicide  of  paHsenger 
on  railroad. —  Gl  Ga.  571.  This  section  only  a|)plies  where  the  action  is 
for  the  tort  aud  not  when;  there  is  a  contract  sued  on;  <',2  Ga.  130-132. 

Where  a  taking  of  cotton  was  not  a  felony  re<iniriiiz  prosecution 
before  civil  action  could  be  brought  for  it,— <!3  Ga.  G'J7;  Lester,  Kowtll 
ft  Hill's  notes.] 

(10)  Idaho.  — Rev.  Stat.   1887:  — 

"  Sec.  4099.  A  father,  or,  in  case  of  his  death  or  <lesertion  of  his  family. 
the  mother,  may  maintain  an  action  for  the  injury  or  death  of  a  minor 
child,  and  a  guardian  for  the  injury  or  death  of  his  ward,  when  such 
Injury  or  death  is  caused  by  the  wrongful  act  or  neglect  «)f  another. 
Such  action  may  be  maintained  against  the  person  causing  the  injury  or 
death,  or  if  su^h  person  be  employed  by  another  person,  who  is  responsi- 
ble for  his  conduct,  also  against  such  other  person. 

"  Sec.  4100.  When  the  death  of  a  person,  not  being  a  minor.  Is  caused 
by  the  wronsful  act  or  neglect  of  another,  his  heirs  or  personal  r«'pre- 
sentatives  may  maintain  an  action  for  damages  against  the  person  caus- 
ing the  death;  or  if  such  person  be  employed  by  another  person  who  Is 
responsible  for  his  conduct,  then  also  against  such  other  person.  In 
every  action  under  this  and  the  preceding  section  such  damages  may  be 
given  as  under  all  the  circumstances  of  the  case  may  be  just." 

The  period  prescribed  for  the  commencement  of  an  action  to  recover 
damages  for  the  death  of  one  caused  by  the  wrongful  act  of  another.  Is 
two  years.     Section  4055. 

(11)  lUinois.—  RiiV.  Stat.  III.,  1891,  p.  803;  ch.  70,  §§1,2;  Hunl's 
«d.:— 

'•  Sec.  1.  Whenever  the  death  of  a  person  shall  be  caused  by  wrongful 
act,  neglect  or  default,  and  the  act,  neglect  or  default  Is  such  as  would, 
If  death  had  not  ensued,  have  entitled  the  party  injured  to  maintain  ao 
action  and  recover  damages  in  respect  thereof,  then,  and  In  every  such 
case,  the  person  who,  or  company orcorporatlon  which,  would  have  been 
liable  if  death  had  not  ensued,  shall  be  liable  to  an  action  for  damages, 
notwithstanding  the  death  of  the  person  Injured,  and  although  the  death 
shall  have  been  caused  under  such  circumstances  as  amount  In  law  Ui 
felony. 

"  Sec.  2.  Every  such  action  shall  be  brought  by  and  in  the  names  of  the 


564  ACTION    FOR   INJURIES   CAUSING   DEATH. 

which  (by  the  statute)  survives  to  the  representative. 
In    Massachusetts  and   Maine  the    courts  have    held   that 

personal  representatives  of  such  deceased  person,  and  the  amount  re- 
covered in  every  such  action  shall  be  for  the  exclusive  benefit  of  the 
widow  and  next  of  iiin  of  such  deceased  person,  and  shall  be  distributed 
to  such  widow  and  next  of  kin,  in  the  proportion  provided  by  law  in 
relation  to  the  distribution  of  personal  property  left  by  persons  dying 
intestate;  and  in  every  such  action  the  jury  may  give  such  damages  as 
they  shall  deem  a  fair  and  just  compensation,  with  reference  to  the 
pecuniary  injuries  resulting  from  such  death  to  the  wife  and  next  of  kia 
of  such  deceased  person,  not  exceeding  the  sum  of  $5,000;  provided, 
that  every  such  action  shall  be  commenced  within  two  years  after  the 
death  of  such  person." 

(12)  Indiana.— 2  Rey.  Stat.  Ind.,  1881;  §284.  Burns  Annotated 
Statutes,  1894, 

"  Sec.  285.  When  the  death  of  one  is  caused  by  the  wrongful  act  or 
omission  of  another,  the  personal  representatives  of  the  former  may 
maintain  an  action  therefor  against  the  latter,  if  the  former  might  have 
maintained  an  action,  had  he  lived,  against  the  latter,  for  an  injury 
for  the  same  act  or  omission.  The  action  must  be  commenced  within 
two  years.  The  damages  cannot  exceed  ten  thousand  dollars  and 
must  enure  to  the  exclusive  benefit  of  the  widow  and  children,  if 
any,  or  next  of  kin,  to  be  distributed  in  the  same  manner  as  personal 
property  of  the  deceased. 

'*  Sec.  6307.  Burns'  Anno.  Stats,  makes  it  duty  of  railroads  to  have 
whistle  and  bell,  and  sound  same  at  certain  times.  Section  5308  provides 
if  engineer  fail  to  comply  with  provisions  of  last  section,  that  he  shall 
be  liable  to  the  State  in  a  certain  penalty,  and  he  and  the  company  shall 
be  liable  in  damages  to  any  person  or  his  representatives  that  may  be 
injured  in  property  or  person  by  such  neglect. 

"  Sec.  5310.  The  amount  of  damages  which  may  be  recovered  under  the 
provisions  of  this  act,  whether  for  bodily  injuries  or  death,  shall  be 
within  the  discretion  of  the  court  or  jury  trying  the  cause :  Provided, 
that  in  case  of  death  such  damages  shall  not  exceed  the  sum  of  five 
thousand  dollars." 

(13)  Iowa.—  Code  Iowa,  1888;  McClain's  Annotated  Statutes,  1888:  — 
"  Sec.  3730.  All  causes  of  action  shall  survive,  and  may  be  brought 

notwithstanding  the  death  of  the  person  entitled  or  liable  to  the  same. 

"  Sec.  3731.  The  right  of  civil  remedy  is  not  merged  in  a  public  offense, 
but  may,  in  all  cases,  be  enforced  independently  of,  and  in  addition  to, 
the  punishment  of  the  latter.  When  a  wrongful  act  produces  death,  the 
damages  shall  be  disposed  of  as  personal  property  belonging  to  the  estate 
of  the  deceased,  except  that  if  the  deceased  leaves  a  husband,  wife,  child, 
or  parent,  it  shall  not  be  liable  for  the  payment  of  debts. 

"  Sec.  3732.  The  actions  contemplated  in  the  two  preceding  sections 


STATUTKS.  505 


[453]    there  is  no  right  to  suo  for  iin  injury  cuuaing  in«tant 
death;   but  in  Connecticut  and  otlior  Slatfs,  as  wo  hayo 


may  be  brought,  or  the  court,  on  motion,  raaj'  allow  the  action  to  be  con- 
tinued, by  or  against  the  legal  representatives  or  the  successdrs  hi  InU-reat 
of  the  deceased.  Such  action  shall  be  deemed  a  continuing  one,  and  to 
have  accrued  to  such  representative  or  succes8or  at  the  same  time  It  did 
to  the  deceased,  if  he  had  survived.  If  such  is  continued  against  the 
legal  representative  of  the  defendant,  a  notice  shall  be  served  on  him  aa 
provided  for  service  of  original  notices." 

"  Sec.  3761.  A  father,  or  in  case  of  his  death  or  imprisonment  or  de- 
sertion of  his  family,  the  mother,  may  prosecute  as  plaintiff  an  action  for 
the  expenses  and  actual  loss  of  service  "  resulting  from  the  injury  or 
death  of  a  minor  child. 

(U)  Kansas.—  Gen.  Stat.  Kan.,  18G8,  p.  709,  ch.  80,  art.  18,  §  422;  2 
Dassler's  Kan.  Stat.,  p.  720,  ch.  80,  art.  18;  Comp.  Laws  Kan.  1879,  p. 
€66,  ch.  80,  art.  18,  §  422;  Comp.  Laws,  1881.  Taylor's  SUtutes,  1889,  § 
4618. 

"  Sec.  422.  "When  the  death  of  one  is  caused  by  the  wrongful  act  or 
omission  of  another,  the  personal  representatives  of  the  former  may 
maintain  an  action  therefor  against  the  latter,  if  the  former  might  have 
maintained  an  action,  had  he  lived,  against  the  latter  for  an  Injury  for  the 
same  act  or  omission.  The  action  must  be  commenced  within  twoye.ar8. 
The  damages  cannot  exceed  ten  thousand  dollars,  aud  must  enure  to  the 
exclusive  benefit  of  the  widow  and  children,  if  auy,  or  next  or  kin,  to  be 
distributed  in  the  same  manner  as  personal  property  of  the  deceased." 

(15)  Kentucky.  —  Barbour  &  Carroll,  18'.t4: — 

"  Sec.  6.  Death  resulting  from  negligence,  who  must  sue,  assessment 
of  damages,  distribution  of  recovery. — Whenever  the  death  of  a  person 
Bhall  result  from  an  injury  inflicted  by  negligence  or  wrongful  act,  then 
Id  every  such  case,  damages  may  be  recovered  for  such  death  from  the 
person  or  persons,  company  or  companies,  corporation  or  corporatlonx, 
their  agents  or  servants,  causing  the  same,  and  when  the  act  is  willful, 
or  the  negligence  Is  gross,  punitive  damages  may  be  recovered,  ami  the 
action  to  recover  such  damages  shall  be  prosecuted  by  the  personal  rep- 
resentative of  the  deceased.  The  amount  recovered,  less  funeral  expen- 
ses and  the  cost  of  administration,  and  such  costs  about  the  recovery, 
including  attorney  fees  as  are  not  included  in  the  recovery  from  the 
defendant,  shall  be  for  the  benefit  of  and  go  to  the  kindred  of  the 
deceased  in  the  following  order."  Then  follow  the  provisions  for 
iUstrlbution,  to  husband  or  wife,  children,  parents  and  remote  kin. 

Actions  are  also  allowed  in  Kentucky  by  the  widow  and  minor  child 
for  damages  against  •'  the  surviving  principal,  the  seconds  and  all  others 
aiding  or  promoting  a  duel,  or  against  any  one  or  more  of  them  for  repa- 
ration of  the  injury,  aud  in  which  the  jury  may  give  vindictive  damages 
for  the  suppression  of  the  practice  of  dueling."—  Gen.  Stat.  1894,  §  6. 


566  ACTION   FOR    INJURIES    CAUSING   DEATH. 

[454]     seen,  the   contraiy    has    been   held,  and  Messrs. 
Shearman  and  Kedfield  incline  to  the  latter  opinion.     In 

Actions  are  also  allowed  in  favor  of  a  widow  and  minor  of  a  person 
killed  by  the  "careless,  wanton  or  malicious  use  of  fire-arms  or  by  any 
weapon  popularly  known  as  colts,  brass  knucks,  or  slung  shots,  or  other 
deadly  weapons  not  in  self-defence  against  the  persons  committing  the 
killing,  or  persons  promoting  and  aiding  the  killing,"  and  they  may  have 
vindictive  damages. —  Gen.  Stat.  1894,  §4. 

(16)  Louisiana. —  Voorhies's  Rev.  Stat.  La.  1889,  p.  427. 

"  Art.  2315  (2294  of  Civil  Code). —  Every  act  whatever  of  man  that 
causes  damage  to  another  obliges  him  by  whose  fault  it  happened  to 
repair  it;  the  right  of  this  action  shall  survive  in  cases  of  death  in  favor 
of  the  minor  children  and  widow  of  the  deceased,  or  either  of  them,  and 
in  default  of  these,  in  favor  of  the  surviving  father  and  mother^  or  either 
of  them,  for  the  space  of  one  year  from  the  death. 

"  Art.  2316  (2295). —  Every  person  is  respons-ible  for  the  damage  he 
occasions  not  merely  by  his  act,  but  by  his  negligence,  his  imprudence 
or  his  want  of  skill. 

"Art.  2317  (2296). —  We  are  responsible  not  only  for  the  damage 
occasioned  by  our  own  act,  but  for  that  which  is  caused  by  the  act  of 
persons  for  whom  we  are  answerable,  or  of  the  things  which  we  have  in 
our  custody.  This,  however,  is  to  be  understood  with  the  following 
modifications. 

"Art.  2318  (2297). —  The  father,  or,  after  his  decease,  the  mother,  ia 
responsible  for  the  damage  occasioned  by  their  minor  or  unmancipated 
children,  residing  with  them,  or  placed  by  them  under  the  care  of  other 
persons  reserving  to  them  recourse  against  those  persons." 

The  same  responsibility  attaches  to  the  tutors  of  minors. 

"Art.  2319  (2298).  — The  curators  of  insane  persons  are  answerable 
for  the  damage  occasioned  by  those  under  their  care. 

"  Art.  2320  (2299) . —  Masters  and  employers  are  answerable  for  the  dam- 
age occasioned  by  their  servants  and  overseers  in  the  exercise  of  the  func- 
tions in  which  they  are  employed.  Teachers  and  artisans  are  answerable 
for  the  damage  caused  by  their  scholars  or  apprentices,  while  under 
their  superintendence.  In  the  above  cases  responsibility  only  attaches 
when  the  masters  or  employers,  teachers  and  artisans,  might  have  pre- 
vented the  act  which  caused  the  damage  and  have  not  done  it. 

"Art.  2321(2301). — Theowner  of  an  animal  is  answerable  for  the  damage 
he  has  caused;  but  if  the  animal  had  been  lost,  or  had  strayed  more  than 
a  day,  he  may  discharge  himself  from  this  responsibility,  by  abandoning 
him  to  the  person  who  has  sustained  the  injury;  except  where  the  master 
has  turned  loose  a  dangerous  or  noxious  animal,  for  then  he  must 
pay  for  all  the  harm  done,  without  being  allowed  to  make  the  abandon- 
ment. 

"Art.  2322  (2302). — The  owner  of  a  building  is  answerable  for  the  damp 


STATUTES.  .')07 

tho  cnso  of  [455]  ii)jury  ilonu  to  u  servant,  the  nia«tcr 
sues  for  the  wrong  done  to    himself,  but  iu  tho  cui*o  of  a 

occasioned  by  its  ruin,  wlien  this  is  caused  by  neglect  to  repair  It,  or 
when  it  is  the  result  of  a  vice  in  its  original  construction. 

"Art.  2323  (2303). —  The  duniu^e  cuiised  is  not  always  estimated  at  lli« 
exact  value  of  the  thing  destroyed  or  injured,  it  may  be  reduced  accurdin|{ 
to  circumstances,  if  the  owmr  of  the  thinti  has  exposed  it  Imprudently. 

"  Art.  2324  (2304). —  lie  who  causes  anotlier  person  to  do  an  unlawful 
actor  assists  or  encourages  iu  the  commission  of  it  is  answerable  tn  tulido 
with  that  person  for  the  damage  caused  by  such  act." 

(17)  Maint-.—  Rev.  Stat.  Me.  1883,  p.  482,  ch.  51  :  — 

"Sec.  (!8.  Any  railroad  corporation,  by  whose  negligence  or  carelesn- 
ness  or  by  that  of  its  servants  or  aueuts  while  employed  in  its  business, 
the  life  of  any  person,  in  the  exercise  of  due  care  and  tliligence,  is  lost, 
forfeits  not  less  than  Ave  hundred,  nor  more  than  live  thousand  dollars,  to 
be  recovered  by  indictment  found  within  one  year,  wholly  to  the  use  of 
his  widow,  if  no  children;  and  to  the  children,  If  no  widow;  if  both,  to 
her  and  them  equally;  if  neither  to  his  heirs." 

By  §  7,  chap.  52,  these  provisions  are  made  applicable  to  stcamboatjt. 
Stage  coaches  and  common  carriers. 

Sec.  G9,  Stat.  1883,  p.  482,  provides  that  no  railroad  corporation  shall 
be  fined  for  the  death  of  a  person  walking  or  being  on  its  road  contrary 
to  law  or  to  its  valid  rules  and  regulations. 

(18)  Maryland.— Wcv.  Code  iMd.  1878,  p.  724,  arts.  «;7,  15;   §§  1-4  :  — 

"  Sec.  1.  Whenever  the  death  of  a  person  shall  lie  caused  by  the  wmng- 
fnl  act,  neglect,  or  default,  and  tlie  act,  neglect,  or  default,  is  such  ns 
would  (if  death  had  not  ensued),  have  entitled  the  party  injured  to  main- 
tain an  action  and  recover  damages  in  respect  thereof,  the  person  who 
would  have  been  liable  if  death  had  not  ensued,  shall  be  liable  to  an 
action  for  damages,  notwithstanding  the  death  shall  have  been  caused 
QDder  such  circumstances  as  amount  in  law  to  felony. 

"  Sec.  2  Every  such  action  shall  be  for  the  benefit  of  the  wife,  hus- 
band, parent  and  child  of  the  person  whose  death  shall  have  been  so 
caused,  and  shall  be  brought  by  and  in  the  name  of  the  State  of  Marylaml 
for  the  use  of  the  person  entitled  to  damages,  and  in  every  such  anion 
the  jury  may  give  such  damages  as  they  may  think  proportioned  to  the 
Injury  resulting  from  such  death  to  the  parties,  respectively,  f"r  whom 
and  for  whose  benefit  such  action  shall  be  brought,  and  the  amount  ho 
recovered,  after  deducting  the  costs  not  recovered  from  the  defendant, 
shall  be  divided  amongst  the  above-mentioned  parties,  in  such  shares  aA 
the  jury  by  their  verdict  shall  find  and  direct;  provided  that  not  more  than 
one  action  shall  lie  for  and  iu  respect  of  the  same  subject-matt^'r  of  com- 
plaint, and  that  every  such  action  shall  be  commenced  within  twelve 
calendar  months  after  the  death  of  the  deceased  pers<m. 

"  Sec.  3.  In  every  such  action,  the  equitable  plaintiff  on  the  record 


568  ACTION    FOR    INJURIES   CAUSING   DEATH. 

representative  under  [456]  Lord  Campbell's  Act  the 
plaintiff  is  suing  for  the  injury  done  to  the  deceased  and 
thereby  causing  loss  to  others. 

shall  be  required,  together  with  the  declaration,  to  deliver  to  the 
defendant  or  his  attorney  a  full  particular  of  the  persons  for  whom  and 
on  whose  behalf  such  action  shall  be  brought,  and  of  the  nature  of  the 
claim  in  respect  of  which  damages  shall  be  sought  to  be  recovered. 

''  Sec.  i.  The  following  words  and  expressions  used  in  the  three  pre- 
ceding sections  are  intended  to  have  the  meaning  hereby  assigned  to  them 
respectively,  so  far  as  such  meanings  are  not  excluded  by  the  context  or 
by  the  nature  of  the  subject-matter,  that  is  to  say,  the  word  person  shall 
apply  to  bodies  politic  and  corporate,  and  all  corporations  shall  be  re- 
sponsible under  the  three  preceding  sections  for  the  wrongful  acts,  ne- 
glect or  default  of  all  agents  employed  by  them." 

C19)  Massachusetts.—  Gen.  Stat.  Mass.  1860,  p.  648,  ch.  127.  Pub. 
Stat.  1882,  p.  958  :— 

"  Sec.  1.  In  addition  to  the  actions  which  survive  by  the  common  law, 
the  following  shall  also  survive :  Actions  *  *  *  of  tort  for  assault, 
battery,  imprisonment,  or  other  damage  to  the  person,  etc. 

Gen.  Stats.  1860,  p.  651,  chap.  128.    Pub.  Stat.  1882,  p.  961:— 

**  Sec.  1.  All  actions  which  would  have  survived  if  commenced  by  or 
against  the  original  party  in  his  life-time,  may  be  commenced  and  prose- 
cuted by  and  against  his  executors  and  administrators." 

Pub.  Stat.  1882,  p.  421:— 

•*  Sec.  6.  If  the  life  of  a  passenger  is  lost  by  reason  of  the  negligence 
or  carelessness  of  the  proprietor  or  proprietors  of  a  steamboat  or  stage- 
coach, or  of  common  carriers  of  passengers,  or  by  the  unfitness  or  gross 
negligence  or  carelessness  of  their  servant  or  agents,  such  proprietor  or 
proprietors  and  common  carriers  shall  be  liable  in  damages  not  exceed- 
ing five  thousand  nor  less  than  five  hundred  dollars,  to  be  assessed  with 
reference  to  the  degree  of  culpability  of  the  proprietor  or  proprietors  or 
common  carriers  liable,  or  of  their  servants  or  agents,  and  recovered  in  an 
action  of  tort,  commenced  within  one  year  from  the  injury  causing  the 
death,  by  the  executor  or  administrator  of  the  deceased  person,  for  the 
use  of  the  widow  and  children  of  the  deceased  in  equal  moieties,  or,  if 
there  are  no  children,  to  the  use  of  the  widow,  or,  if  no  widow,  to  the 
use  of  the  next  of  kin. 

Pub.  Stat.  1882,  p.  637:— 

"  Sec.  212.  If  by  reason  of  the  negligence  or  carelessness  of  a  corpora- 
tion operating  a  railroad  or  street  railway,  or  of  the  unfitness  or  gross 
negligence  or  carelessness  of  its  servants,  or  agents  while  engaged  in 
its  business,  the  life  of  a  passenger,  or  of  a  person  being  in  the  exercise 
of  due  diligence  and  not  a  passenger  or  in  the  employment  of  such  cor- 
poration is  lost,  the  corporation  shall  be  punished  by  fine  of  not  less  than 


STATUTES.       "•  f)69 

[457]     The  damnnjcs  muht  arise  from  the  Iohs  of  u  ht-n- 
>  lit   derived   from    the    rehilionship  between    the  dcccuttcd 

Ave  hundred  nor  more  than  live  thousand  -dollars,  to  be  recovorvd  by 
iDdictmeut  prosecuted  within  one  year  from  the  time  of  the  Injury  cauM- 
Ing  dfiith,  and  piiid  to  the  executor  or  administrator  for  the  uho  of  llie 
widow  and  children  of  the  deceased,  in  e<iu!il  moieties;  or  If  lliere  bo  no 
children  to  the  use  of  the  widow;  or  if  there  be  no  widow  to  the  use  of 
the  next  of  kin;  but  a  corporation  operating  a  railroad  shall  not  be  so 
liable  for  the  loss  of  life  by  a  person  while  walking  or  being  upon  Its 
road  contrary  to  law  or  to  the  reasonable  rules  and  regulations  of  the 
corporation.  If  the  corporation  is  a  railroad  corporation  It  shall  also  be 
liable  in  daraajies  not  exceeding  Ave  thousand  dollars  uor  less  than  Ave 
hundred  dollars,  to  be  assessed  with  reference  to  the  degree  of  culpa- 
bility of  the  corporation  or  of  its  servants  or  agents,  and  to  be  recovered 
in  an  action  of  tort  commenced  within  one  year  from  the  Injury  causing 
the  death,  by  the  executor  or  administrator  of  the  deceased  person  for 
the  use  of  the  persons  before  specilled  in  the  case  of  an  indictment.  Uut 
no  exicutor  or  administrator  shall  for  the  same  cause,  avail  himself  of 
more  than  one  of  the  remedies  given  by  this  section. 

"  Sec.  213.  If  a  person  is  injured  in  his  person  or  property  by  collision 
with  the  engines  or  cars  of  a  railroad  corporation  at  a  crossing  such  as 
Is  described  in  section  one  hundred  and  sixty-three  (providing  that  at 
certain  places  bell  to  be  sounded,  etc.),  and  it  appears  that  the  corpora- 
lion  neglected  to  give  the  signals  required  by  said  section,  and  that  tiuch 
neglect  contributed  to  the  injury,  the  corporation  shall  be  liable  for  all 
damages  caused  by  the  collision,  or  to  a  fine  recoverable  by  indictment 
as  provided  in  the  preceding  section,  or  in  case  the  life  of  a  person  so 
injured  is  lost,  to  damages  recoverable  in  an  action  of  tort,  as  provided 
In  said  section,  unless  it  is  shown  that  in  addition  to  a  mere  want  of 
ordinary  care  the  person  injured  or  the  person  having  charge  of  his  per- 
son or  property  w^s  at  the  time  of  the  collision  guilty  of  gross  or  willful 
negligence,  or  was  acting  in  violation  of  law  and  that  such  gross  or 
irillful  negligence  or  unlawful  act  contributed  to  the  injury," 

(20)  3/ic/u{/a?i.— Howell's  Annotated  Stat.  1882:— 

"  Sec.  8313.  Whenever  the  death  of  a  person  shall  be  caused  by  wrong- 
Inl  act,  neglect,  or  default,  and  the  act,  neglect,  or  default  is  such  t» 
would  (if  death  had  not  ensued)  have  entitled  the  party  injured  to  main- 
tain an  action  and  recover  damages  in  respect  thereof,  then,  and  In  every 
such  case,  the  person  who,  or  the  corporation  which  would  have  been 
liable  if  death  had  not  ensued,  shall  be  1  able  to  an  action  for  damages,  not- 
withstanding the  death  of  the  person  Injured,  and  although  the  death  shall 
have  been  caused  under  such  circumstances  as  amount  in  law  to  felony. 

••Sec.  8314.  Every  action  shall  be  brought  by  and  In  the  names  of  the 
personal  representatives  of  such  deceased  person,  and  the  amount  re- 
covered in  every  such  action  shall  be  distributed  to  the  persons  and  In 


570  ACTION   FOR   INJURIES    CAUSING   DEATH. 

and    of     [458]     the  parties    claiming  compensation,    not 
from  a  contract  made  between  him  and  them  (c). 

(c)  Sykes  v.  N.  E.  Ry.  Co.,  44  L.  J.  C.  P.  191. 


the  proportions  provided  by  law  in  relation  to  the  distribution  of  per- 
sonal property  left  by  persons  dying  intestate ;  and  in  every  such  action 
the  jury  may  give  such  damages  as  they  shall  deem  fair  and  just  with 
reference  to  the  pecuniary  injury  resulting  from  such  death,  to  those  per- 
sons who  may  be  entitled  to  such  damages  when  recovered." 

There  are  similar  provisions  with  reference  to  injuries  causing  death 
by  railroads,  §§  3391,  3392,  8491,  3492. 

(21)  Minnesota.—  Stsit.  1891  (Kelly),  ch.  84:— 

"  Sec.  5578.  "When  death  is  caused  by  the  wrongful  act  or  omission  of 
any  party  or  corporation,  the  personal  representatives  of  the  deceased 
may  maintain  an  action,  if  he  might  have  maintained  an  action,  had  he 
lived,  for  an  injury  caused  by  the  same  act  or  omission  by  which  the  death 
was  caused;  but  the  action  shall  be  commenced  within  two  years  after 
the  act  or  omission  by  which  the  death  was  caused;  the  damages  thereon 
cannot  exceed  ten  thousand  dollars,  and  the  amount  recovered  is  to  be 
for  the  exclusive  benefit  of  the  widow  and  next  of  kin,  to  be  distributed 
to  them  in  the  same  proportions  as  the  personal  property  of  the  deceased 
person." 

(22)  Mississippi. —  Rev.  Code,  1880,  §  1510,  Thompson,  Dillard  and 
Campbell,  Anno.  1892. 

"  Sec.  663.  Whenever  the  death  of  any  person  shall  be  caused  by  any 
such  wrongful  or  negligent  act  or  omission,  as  would  if  death  had  not 
ensued  have  entitled  the  party  injured  or  damaged  thereby,  to  maintain 
an  action  and  recover  damages  in  respect  thereof,  and  such  deceased  per- 
son shall  have  left  a  widow  or  children  or  both,  or  husband  or  father  or 
mother,  the  person  or  corporation  or  both,  that  would  have  been  liable  if 
death  had  uot  ensued,  and  the  representatives  of  such  person,  shall  be 
liable  for  the  damages  notwithstanding  the  death;  and  the  action  may  be 
brought  in  the  name  of  the  widow  for  the  death  of  her  husband,  or  by 
the  husband  for  the  death  of  his  wife,  or  by  the  parent  for  the  death  of 
a  child,  or  in  the  name  of  a  child  for  the  death  of  an  only  parent;  the 
damages  to  be  for  the  use  of  such  widow,  husband,  or  child,  except 
"lat  in  case  a  widow  should  have  children,  the  damages  shall  be  distrib- 
.iierl  as  personal  property  of  the  husband.  In  every  such  action  the 
jury  may  give  such  damages  as  shall  be  fair  and  just,  with  reference  to 
the  injury  resulting  from  such  death  to  the  person  suing;  but  every  such 
action  shall  be  commenced  within  one  year  after  the  death  of  such 
deceased  person." 

(23)  Missouri.  —  1  Rev.  Stat.  Mo.,  1889,  §  4425:  —  See  ante,  Missouri 
note  p.  247. 

•'  Sec.  4426.  Whenever  the   death  of  a  person  shall  be  caused  by  a 


STATITKS.  571 

[4.')0]  On  the  other  hand,  in  ic(hu'ti()n  ol  jhimagcs,  th** 
benefit  arising  from  a  life  insuranec  or  iii-m-incf  .i-'Min-f 
accidents  may  bo  taken  into  account  ((/). 

{<!)  Illcks  r.  Newport  Uy.  ("o.,  •»  I!.  A  son,  M  m.  UH;  Hanllnic  r.  TownMtxl 

a4U:5,  note  lo  Tyni  v.  G.  X.  liy.  Co.,  and  43  Vt.  63(i;   Itraillturn  r.  (J.  W.  Ity.  Co., 

MO  Uratllturn  v.  G.  W.  Ky.  Co.,  L.  R.  10  supra,  in,  It  would  appuar,  lo  Iho  Ma>« 

Ex.  !•    (This  is  not  the  rule  in  this  coun-  effect;  North  I'enn.  It.  U.  Co.  r.  Kirk.  M 

try.    Alihorf    f.    U'olfo,   l-l    N.    Y.    3.W;  I'a.  St.  15;  Conijdon  r.  Ilowo   Scale  Co.. 

Sherlock  v.  .MllnK.  44  Ind.  1S4  ;  Kellogg  6<i  Vt.  iV.;  *J  Atl.  Ucp.  253.    Soapoti.p. 

V.  X.  Y.  Ccnlriil,  etc.,  U.  U.  Co.,  7'J  N.  Y.  588  (/).  ]. 
7S;  Pitteburgh,  etc..  It.  U.  Co.  v.  Tlioinp- 

wrongful  act,  neglect,  or  default  of  another,  and  the  act,  neglect,  or  de- 
fault is  such  as  would  (if  death  had  not  ensued)  have  entitled  the  party 
injured  to  maintain  an  action  and  recover  damaces  in  respect  thereof, 
then,  and  in  every  such  case,  the  person  who,  or  the  corporation  which, 
would  have  been  liable  if  death  hud  not  ensued,  shall  be  liable  to  an 
action  for  damages,  notwithstanding  the  death  of  the  person  injured. 

"Sec.  4427.  All  damages  accruing  under  the  last  preceding  section 
shall  be  sued  for  and  recovered  by  the  same  parties  and  in  the  same 
manner  as  provided  in  section  4425,  and  in  every  such  action  the  jury 
may  give  such  damages,  not  exceeding  five  thousand  dollars,  as  they 
may  deem  fair  and  just,  with  reference  to  the  necessary  injury  resulting 
from  such  death,  to  the  surviving  parties  who  may  be  entitled  to  sue; 
and  also  having  regard  to  the  mitigating  or  aggravating  circumstances 
attending  such  wrongful  act,  neglect,  or  default." 

"  Sec.  4429.  Every  action  instituted  by  virtue  of  the  preceding  sec- 
tions of  this  chapter,  shall  be  commenced  within  one  year  after  the 
cause  of  such  action  shall  accrue." 

(24)  Montana.  —Rev. Stat.  1895.     Civil  Proc,  §  578:  — 

"  Sec.  578.  A  father,  or,  in  case  of  his  death  or  desertion  of  his  family, 
the  mother,  may  maintain  an  action  for  the  injury  or  death  of  a  minor 
child,  and  a  guardian  for  the  injury  or  death  of  his  ward,  when  surli 
Injury  or  death  is  caused  by  the  wrongful  act  or  neglect  of  another,  surli 
action  may  be  maintained  against  the  person  causing  the  Injury  or  death 
11  such  person  be  employed  by  another  person  who  is  responsible  for  his 
conduct  also  against  such  other  person." 

"An  action  to  recover  damages  for  the  death  of  one  caused  by  the 
wrongful  act  of  another  must  be  commenced  within  three  years." 

Code  Civil  Procedure.  1895,  §  514. 

"  Sec.  579.  Where  the  death  of  a  person  not  being  a  minor  is  caused 
by  the  wrongful  act  or  neglect  of  another,  his  heirs,  or  personal  repre- 
sentatives, may  maintain  an  action  for  damages  against  the  person  caus- 
ing the  death,  or  if  such  person  be  employed  by  another  person  who  \* 
responsible  for  his  action,  then  also  against  such  other  person.     In  every 


572  ACTION    FOE    rSJCRFF-S    CAUSING   DEATH. 

[460]  The  Employers  Liability  Act,  1880,  ante,  p. 
225,  applies  to  cases  under  Lord  Campbell's  Act. 

action  under  this  and  the  precedii^  seer: :- .  s-:i  'i^:.^e^  majbe^Nva 
as  under  an  the  circimistuices  oi  tiie  ci 

(25)  Xdnra^ta.— Camp,  Stmt.  1B91,  ,  12,  c1l21:— 

''Sec  1.  That iriienevertiie  death  c:  -  s ii'J  b«  caused  bf  Ihe 

wTODgfal  act,  negleet  (w  default  and  the  i.::^  zzZ-H'^  or  de&olt  issvch 
as  would,  if  death  had  not  ensned,  have  oititled  the  party  injned  to 
maintain  an  action  and  recover  damages  in  respect  thereof  then  and  ia 
erexy  sndi  case,  the  person  who,  «w  company  or  coipotatioB  which 
would  haTe  been  liable  if  deatili  had  not  ensued,  shall  be  liable  to  an 
action  for  damases,  notwitfastandii^  the  death  <rf  the  persmt  injnred, 
and  although  the  death  ^laU  hare  been  cansed  nndar  sod  drcnmstaneea 
as  anKNtnt  in  law  to  felovy. 

"Sec.  2.  Erery  snch  action  shall  be  broi^it  by  and  in  tte  names  «f 
tlie  personal  representattres  of  sa^  deceased  person,  and  the  amanat 
recoyered  in  ereiy  sacb  action  shall  be  for  the  ezdnaive  beneit  of  the 
widow  and  next  of  km  of  sach  deceased  person,  and  shafl  be  disMbated 
to  such  widow  and  next  of  kin  in  tbc  pn^MHtaon  provided  by  law  in  rela- 
tion to  the  distribvtMMi  of  personal  pn^ioty  left  by  persons  dyi^  in- 
testate; and  in  ereiysncfaactifm  the  jmy  may  s^resn^  damages  as  thqf 
shall  deem  a  fair  and  jnst  oompeaaatioa  with  reference  to  tJie  peendaiy 
mjnries  resulting  from  sndh  death,  to  flie  wife  and  next  of  kin  of  sneh 
deceased  person,  not  exceecBi^  tiie  som  of  five  thoa^md  doDaxs;  .fw- 
awded,  tiiat  every  snch  action  shall  be  commenced  witiinn  two  yean  after 
the  death  of  snch  person.'* 

(27)  Xejrada.  —  GexL.  Stats.  18S5:— 

*'  Sec.  3896.  Wheaerer  the  death  of  a  p^son  aiiallbe  caosed  bj  wiung- 
fol  act,  neglect,  or  d^anl^  and  the  act,  ne^ed,  or  defaalt  is  sach  la 
would  (if  deaA  had  not  eword)  have  entitled  the  party  iBJoxed  to  main- 
tain an  action  and  recover  damages  in  respect  tfmeo^  then,  and  in  eveiy 
smdi  case,  tiie  persaos  who,  or  the  coipoiatiaa  which,  wovld  have  heea 
fiable  if  deadi  had  not  ensned,  diall  be  liable  to  an  action  for  ilimsgi, 
notwitiistandn^  file  death  of  the  person  iajnred,  and  altfaongh  the  dmft 
Shan  hare  been  caused  onder  snch  liii  iiiwilinn  i  as  amoont  in  law  to  a 
felony. 

'"  Sec.  3S^.  The  proceeds  of  any  jndgmuut  obtained  in  aay  aeliw 
brought  under  tlie  provisioBS  of  this  act  shaU  not  be  liable  for  any  defet 
<^  the  deceased;  promdeif  he  <w  she  shdl  haTe  left  a  hnshand,  wttt^ 
chQd,  father,  mofiier,  brother,  sister,  or  duld  <Nr  childien  ci  a  deceased 
child ;  but  shaU  be  distribnted  as  ftdlows:  First,  if  there  be  a  sarvtviig 
husband  or  wife,  and  no  ddld,  then  to  sndi  hn^mnd  or  wife,  if  then 
be  a  surviTing  husband  or  wife,  and  m  child  or  dildren,  cr  sraad- 
^adren,  then,  equally  to  each,  tte  ginBdefaild  or  children,  takiag  IT 
right  of  rqwpeaentation;  if  tboe  be  no  hnsband  or  vrife,  bat  a  chUd  at 


8TATLTK8.  573 

children  or  grandchild  or  children,  then  to  such  child  or  children 
and  grandchild  or  children  by  rlcht  of  representation;  if  thtrr  hr  no 
child  or  grandchild  then  to  a  surviving  brother  or  sister,  -s 

or  sisters,  If  there  be  any;  11  there  be  none  of  the  kindred  :■  re 

■amed,  then  the  proceeds  of  such  judgment  shall  be  disposed  of  Id  the 
manner  authorized  by  law  for  the  disposition  of  the  personal  proptrty  of 
deceased  persons ;  provided,  every  such  action  shall  be  brought  by  and 
in  the  name  of  the  personal  representative  or  representatives  of  such  de- 
ceased person;  and  provided,  further,  the  jury  in  every  such  action  may 
give  such  damages,  pecuniary  and  exemplary,  as  they  shall  deem  fair  and 
jnst,  and  may  take  into  consideration  the  pecuniary  injury  resulting  from 
soch  death  to  the  kindred  as  herein  named." 

(27)  Xeto  Hampshire.—  Public  Statutes,  1891,  chap,  191,  p.  534: — 

'*  Sec.  8.  Actions  of  tort  for  physical  injuries  to  the  person,  although 
inflicted  by  a  person  while  committing  a  felony,  and  the  causes  of  such 
actions,  shall  survive  to  the  extent,  and  subject  to  the  limitations  set 
forth  in  the  five  following  sections  and  not  otherwise. 

"Sec.  9.  If  such  an  action  is  pending  at  the  time  of  the  decease  of  one 
'A  the  parties,  it  shall  abate  and  be  forever  barred,  unless  tbe  admlnis- 
tntor  of  the  deceased  party,  if  the  deceased  was  plaintiff,  shall  appear 
and  assume  the  prosecution  of  the  action  before  the  end  of  the  second 
t«nn  after  the  decease  of  such  party,  or  if  the  deceased  party  was  defend- 
ant, unless  the  plaintiff  shall  procure  a  scire  facias  to  be  issued  to  the 
administrator  of  the  deceased  party  before  the  end  of  the  second  term 
after  the  original  grant  of  administration  upon  his  estate. 

"  Sec.  10.  If  an  action  is  not  then  pending  and  has  not  already  become 
barred  by  the  statute  of  limitations,  one  may  be  brought  for  such  cause 
at  any  time  within  two  years  after  the  death  of  the  deceased  party,  and 
not  afterwards, 

"  Sec.  11.  The  damages  recoverable  in  any  such  action  shall  not  ex- 
eeed  seven  thousand  dollars. 

"  Sec.  12.  If  the  administrator  of  the  deceased  party  is  plaintiff,  and 
tte  death  of  such  party  was  caused  by  the  injury  complained  of  in  the 
iction,  the  mental  and  physical  pain  suffered  by  him  in  consequence  of 
tbe  Injury,  the  reasonable  expenses  occasioned  to  his  estate  by  the  In- 
jary;  the  probable  duration  of  hislile  but  for  the  injury,  and  his  capacity 
to  earn  money,  may  be  considered  as  elements  of  damage  in  connection 
with  other  elements  allowed  by  law. 

"  Sec.  13.  In  such  case,  the  damages  recovered,  less  the  expenses  of 
recovery,  shall  belong  and  be  distributed  as  follows : — 

*'  I.  To  the  widow  or  widower  of  the  deceased,  one -half  thereof;  and 
to  the  children  of  the  deceased  the  other  half  in  equal  shares. 
*•  II.  If  there  be  no  child  to  the  widow  or  widower  the  whole  t2v 
"III.  If  there  be  no  child,  and  no  widow  or  widower  to  the  b^     - 
law  of  the  deceased,  according  to  the  laws  of  distribution." 

(28)  Xno  Jersey.—  Rev.  Stat.  N.  J.  1S77,  p.  294:  — 

"Section  I.    Whenever  the  death  of  a  person  shall   be  caused  by 


574  ACTION    FOR    IX JURIES    CAUSING    DEATH. 

wrongful  act,  neglect,  or  default,  and  the  act,  neglect,  or  default  is  such 
as  would,  if  death  had  not  ensued,  have  entitled  the  party  injured  to 
maintain  an  action  and  recover  damages  in  respect  thereof,  then,  and  in 
every  such  case,  the  person  who,  or  the  corporation  which,  would  have 
been  liable  if  death  had  not  ensued,  shall  be  liable  to  an  action  for  dam- 
ages, notwithstanding  the  death  of  the  person  injured,  and  although  the 
death  shall  have  been  caused  under  such  circumstances  as  amount  in  law 
to  felony. 

"  Sec.  2.  Every  such  action  shall  be  brought  by  and  in  the  names  of 
the  personal  representatives  of  such  deceased  person,  and  the  amount 
recovered  in  every  such  action  shall  be  for  the  exclusive  benefit  of  the 
widow  and  next  of  kin  of  such  deceased  person,  and  shall  be  distributed 
to  such  widow  and  next  of  kin  in  the  proportions  provided  by  law  in  rela- 
tion to  the  distribution  of  personal  property  left  by  persons  dying  intes- 
tate; and  in  every  such  action  the  jury  may  give  such  damages  as  they 
shall  deem  fair  and  just,  with  reference  to  the  pecuniary  injury  resulting 
from  such  death,  to  the  wife  and  next  of  kin  (of)  such  deceased  person; 
provided,  that  every  such  action  shall  be  commenced  within  twelve  cal- 
endar months  after  the  death  of  such  deceased  person. 

"  Sec.  3.  On  the  request  by  the  defendant,  or  the  defendant's  attorney, 
the  plaintiff  on  the  record  shall  be  required  to  deliver  to  defendant,  or 
to  the  defendant's  attorney,  a  particular  account,  in  writing  of  the  nature 
of  the  claim  in  respect  to  which  damages  shall  be  sought  to  be  re- 
covered." 

(29)  New  Mexico. —  Compiled  laws  of  New  Mex.,  1884:— 

"  Sec.  2308.  Whenever  any  person  shall  die  from  any  injury  resulting 
from,  or  occasioned  by  the  negligence,  unskillfulness  or  criminal  intent 
of  any  officer,  agent,  servant  or  employe,  whilst  running,  conducting  or 
managing  any  locomotive,  car  or  train  of  cars,  or  of  any  driver  of  any 
stage  coach  or  other  public  conveyance,  while  in  charge  of  the  same  as 
driver;  and  when  any  passenger  shall  die  from  any  injury  resulting 
from  or  occasioned  by  any  defect  or  insufficiency  in  any  railroad,  or  any 
part  thereof,  or  in  any  locomotive  or  car,  or  in  any  stage  coach,  or  other 
public  conveyance,  the  corporation,  individual  or  individuals  in  whose 
employ  any  such  officer,  agent,  servant,  employe,  engineer  or  driver  shall 
be  at  the  time  such  injury  was  committed,  or  who  owns  any  such  rail- 
road, locomotive,  car,  stage  coach,  or  other  public  conveyance,  at  the 
time  any  injury  is  received,  resulting  from  or  occasioned  by  any  defect 
or  insufficiency  above  declared,  shall  forfeit  and  pay  for  every  person  or 
passenger  so  dying  the  sum  of  five  thousand  dollars,  which  may  be  sued 
and  recovered:  First,  by  the  husband  or  wife  of  the  deceased;  or  second, 
if  there  be  no  husband  or  wife,  or  if  he  or  she  fails  to  sue  within  six 
months  after  such  death,  then  by  the  minor  child  or  children  of  the 
deceased;  or  third,  if  such  deceased  be  a  minor  and  unmarried,  then  by 
the  father  and  mother,  who  may  join  in  the  suit,  and  each  shall  have  au 
equal  interest  in  the  judgment;  or  if  either  of  them  be  dead,  then  by  the 


STATLTKS.  575 

iurvivor.  In  suits  instituted  under  tliis  section,  It  hJiiiII  be  comp«-i4-nt  fur 
the  defendant  for  his  defense  to  stiow  tlmt  the  defect  or  Iniiullli  leney 
named  In  this  section,  was  not  of  a  neKll;,'cnt  defect  or  InHuniclency. 

"  Sec.  230'.t.  Whenever  the  death  of  the  person  hlihil  be  caii^fd  by  a 
wrongful  act,  neplect  or  default  of  another,  and  the  act  or  nej;licl  or  do- 
fault  Is  such  as  would.  If  death  had  not  ensued,  have  entitled  the  party 
injured  to  maintain  an  action  and  recover  damages  In  respect  thereof, 
then  and  in  every  such  case,  the  person  who,  or  the  corporation  which, 
would  have  been  liable,  if  death  bad  not  ensued,  shall  be  liable  to  an 
action  for  damages  notwithstanding  the  death  of  the  person  injured. 

"Sec.  2310.  All  damages  accruing  under  the  last  preceding  section 
shall  be  sued  for  and  recovered  by  the  same  parties  and  in  the  same 
manner  as  provided  in  section  2308,  ami  in  every  such  action  the  jury  may 
give  such  damages  not  exceeding  five  thousand  dollars,  as  they  may 
deem  fair  and  just,  with  reference  to  the  necessary  injury  resulting  from 
such  death,  to  the  surviving  parties,  who  may  be  entitled  to  sue,  and  also 
having  regard  to  the  mitigating  or  aggravating  circumstances  attending 
such  wrongful  act,  neglect  or  default. 

(30)  New   York.— Co^G  Civil  Pro.,  §  1902,  Bliss  Anno.  Code,  1890:  — 

"Action  for  Causing  Death  by  Negligence,  — The  executor  or  adminis- 
trator of  a  decedent,  who  has  left  him  or  her  surviving  a  husband,  wife, 
or  next  of  kin,  may  maintain  an  action  to  recover  damages  for  a  wrongful 
act,  neglect,  or  default,  by  which  the  decedent's  death  was  causeil,  against 
a  natural'person  who,  or  a  corporation  which,  would  HUve  been  lia»)ie  to  an 
action  in  favor  of  the  decedent  by  reason  thereof,  if  death  had  not 
eosaed.  Such  an  action  must  be  commenced  within  two  years  after  the 
decedent's  death. 

Sec.  1903  Id.:— 

**  For  whose  Benefit. —  The  damages  recovered  in  an  action  brought  as 
prescrlljed  in  the  last  section  are  exclusively  for  the  benellt  of  the  dece- 
dent's husband  or  wife,  and  next  of  kin;  and  wlien  they  are  collected  they 
must  be  distributed  by  the  plaintifif,  as  if  they  were  unbequeathed 
assets,  left  in  his  hands,  after  the  payment  of  all  debts  and  expenses  of 
administration.  But  the  plaintiff  may  deduct  therefrom  the  expenses  of 
the  action  and  his  commissions  upon  the  residue,  which  must  be  allowetl 
by  the  surrogate  upon  notice  given  in  sacha  manner  and  to  such  persons 
M  the  surrogate  deems  proper. 

"Sec.  1904.  Amount  of  Recovery. —  The  damages  awarded  to  the 
plaintiff  may  be  such  a  sum,  not  exceeding  Ave  thousand  dollars,  as  the 
jury  upon  a  writ  of  inquiry,  or  upon  a  trial,  or  where  Issues  of  fact  arc 
tried  without  a  jury,  the  court  or  tlie  referee  deems  to  be  a  fair  and  just 
compensation  for  the  pecuniary  injuries  resulting  from  the  decedent's 
death  to  the  person  or  persons  for  whose  benefit  the  action  Is  brought. 
When  final  judgment  for  the  plaintiff  is  rendered,  the  clerk  must  add  to 
the  sum  so  awarded  interest  thereupon  from  the  dece»lent's  death,  and 
include  It  in  the  judgment.     The  inquisition,  verdict,  report  or  declsioo, 


576  ACTION   FOR    INJURIES    CAUSING   DEATH. 

may  specify  the  day  from  which  interest  is  so  to  be  computed;  if  It 
omits  so  to  do,  the  day  may  be  determined  by  the  clerk  upon  affidavits. 

*•  Sec.  1899.  Where  the  violation  of  a  right  admits  of  a  civil  and  also 
of  a  criminal  prosecution,  the  one  is  not  merged  in  the  other. 

"  Sec.  1905.  The  term  'next  of  kin,'  as  used  in  the  foregoing  sections, 
has  the  meaning  specified  in  sec.  1870  of  this  act. 

'•  Sec.  1870.  The  term  '  next  of  kin,'  as  used  in  this  title,  includes  all 
those  entitled,  under  the  provisions  of  law  relating  to  the  distribution  of 
personal  property  to  share  in  the  unbequeathed  assets  of  a  decedent, 
after  payment  of  debts  and  expenses  other  than  a  surviving  husband  or 
wife." 

(31)  North  Carolina. —  North  Carolina  Code,  1883: — 

•*  Sec.  1498.  Whenever  the  death  of  a  person  is  caused  by  a  wrongful 
act,  neglect,  or  default  of  another,  such  as  would,  if  the  injured  party 
had  lived,  have  entitled  him  to  an  action  for  damages  therefor,  the  person 
or  the  corporation  that  would  have  been  so  liable ,  and  his  or  their  exec- 
utors, administrators,  collectors,  or  successors,  shall  be  liable  to  an 
action  for  damages,  to  be  brought  within  one  year  after  such  death,  by 
the  executor,  administrator,  or  collector  of  the  decedent,  and  this  not- 
withstanding the  death,  and  although  the  wrongful  act,  neglect  or  de- 
fault causing  the  death  amount  in  law  to  a  felony. 

**  Sec.  1499.  The  plaintiff  in  such  action  may  recover  such  damages  as 
are  fair  and  just  compensation  for  the  pecuoiary  injury  resulting  from 
such  death. 

•'  Sec.  1500.  The  amount  recovered  in  such  act  is  not  liable  to  be 
applied  as  assets  in  the  payment  of  the  debts  or  legacies,  but  shall  be 
disposed  of  as  provided  in  this  chapter  for  the  distribution  of  personal 
property  in  case  of  intestacy." 

(32)  OAio.— Rev.  Stat.  1890:— 

"Sec.  6134.  Whenever  the  death  of  a  person  shall  be  caused  by 
wrongful  act,  neglect,  or  default,  and  the  act,  neglect,  or  default  is  such 
as  would  (if  death  had  not  ensued),  have  entitled  the  party  injured  to 
maintain  an  action  and  recover  damages  in  respect  thereof,  then,  and  in 
every  such  case,  the  person  who,  or  the  corporation  which,  would  have 
been  liable  if  death  had  not  ensued,  shall  be  liable  to  an  action  for  dam- 
ages, notwithstanding  the  death  of  the  person  injured,  and  although  the 
death  shall  have  been  caused  under  such  circumstances  as  amount  in  law 
to  murder  in  the  first  or  second  degree,  or  manslaughter." 

"  Sec.  6135.  Every  such  action  shall  be  for  the  exclusive  benefit  of 
the  wife,  or  husband  and  children,  or  if  there  be  neither  of  them, 
then  of  the  parents  and  next  of  kin  of  the  person  whose  death  shall  be 
so  caused;  and  it  shall  be  brought  in  the  name  of  the  personal  represent- 
ative of  the  deceased  person;  and  in  every  action  the  jury  may  give  such 
damages,  not  exceeding  in  any  case  ten  thousand  dollars,  as  they  may 
think  proportioned  to  the  pecuniary  injury  resulting  from  such  death,  to 
the  persons  respectively  for  whose  benefit  such  action  shall  be  brought; 


STATl'TKS.  •)77 

every  such  action  shall  be  commenced  within  two  years  after  thr  <leath 
of  such  dcceaseil  person.  Such  personal  representntlvi-,  If  he  wa<i 
appoiuteil  In  this  State  with  the  consent  of  the  court  uiakluR  sucb 
appointment,  may  at  any  time,  before  or  after  the  commenci-im-nl  of  a 
salt,  settle  with  the  tlefendant  the  amount  to  be  paid;  and  iho  amoool 
received  by  such  personal  representative,  whether  by  settlement  or  other- 
wise,  shall  be  apportioned  among  the  benellclaries,  ank-ss  adjusted 
between  themselves  by  the  court  making  the  appointment  In  such  manner 
as  shall  be  fair  and  equitable,  having  reference  to  the  age  and  condition 
of  such  benellclaries  and  the  laws  of  descent  and  distribution  of  personal 
estates  left  by  persona  dying  Intestate." 

(33)  OWa/ioma.— Statutes  of  Oklahoma,  1890:  — 

"  Sec.  4338.  When  the  death  of  one  is  caused  by  the  wronpfnl  act  or 
omission  of  another  the  personal  representatives  of  the  former  may 
maintain  an  action  therefor  against  the  latter  if  the  former  might  have 
maintained  an  action,  had  he  lived,  against  the  latter  for  an  injury 
for  the  same  act  or  omission.  The  action  must  be  commenced  within 
two  years.  The  damages  can  not  exceed  ten  thousand  dollars,  anil  mus: 
inure  to  the  exclusive  benefit  of  the  widow  and  children,  If  any,  or  thu 
next  of  kin,  to  be  distributed  in  the  same  manner  as  personal  property 
of  the  deceased." 

(34)  Oregon. —  Gen,  Laws  Ore.  1887:— 

"  Sec.  371.  When  the  death  of  a  person  Is  caused  by  the  wrongful  act 
or  omission  of  another,  the  personal  representatives  of  the  former  may 
maintain  an  action  at  law  therefor  against  the  latter,  if  the  former  might 
have  maintained  an  action,  had  he  lived,  against  the  latter  for  an  Injury 
done  by  the  same  act  or  omission.  Such  action  shall  be  commenced 
within  two  years  after  the  death,  and  the  damages  therein  shall  not 
exceed  five  thousand  dollars  and  the  amount  recovered.  If  any,  shall  be 
administered  as  other  personal  property  of  the  deceased  person. 

"  Sec.  34.  A  father,  or,  in  case  of  the  death  or  desertion  of  his  family, 
the  mother,  may  maintain  an  action  as  plaintiff  for  the  Injury  or  death  of 
a  child,  and  a  guardian  for  the  injury  or  death  of  his  ward," 

(35)  Pennsylvania.— 2  Blight.  Purd.  Dig.  Stat.  Pa.,  1886,  Uth  ed.,  p. 
1267  :— 

'*  Sec.  1 ,  (Constitutional  provision)  .No  act  of  the  general  assembly  shall 
limit  the  amount  to  be  recovered  for  injuries  resulting  In  death  or  for 
iojarles  to  persons  or  property,  and  in  case  of  death  from  such  Injurleti 
the  right  of  action  shall  survive,  and  the  general  assembly  shall  prescribe 
for  whose  benefit  such  actions  shall  be  prosecuted.  No  act  shall  pre- 
scribe any  limitation  of  time  within  which  suits  may  be  brought  against 
corporations  for  injuries  to  persons  or  property,  or  for  other  causes 
different  from  those  fixed  by  general  laws  regulating  actions  against 
natural  persons;  and  such  acts  now  existing  are  avoided. 

"Sec.  2.  No  action  hereafter  brought  to  recover  damages  for  Injurlea 
to  the  person  by  negligence  or  default,  shall  abate  by  reason  of  the  death 

37 


578  ACTION    FOR    INJURIES    CAUSING    DEATH. 

of  the  plaintiff;  but  the  personal  representatives  of  the  deceased  maybe 
substituted  as  plaintiff,  and  prosecute  the  suit  to  final  judgment  and 
satisfaction. 

"Sec.  3.  Whenever  death  shall  be  occasioned  by  unlawful  violence  or 
negligence,  and  no  suit  for  damages  be  brought  by  the  party  injured, 
during  his  or  her  life,  the  widow  of  any  such  deceased,  or,  if  there  be  no 
widow,  the  personal  representatives,  may  maintain  an  action  for  and 
recover  damages  for  the  death  thus  occasioned. 

"  Sec.  4.  The  persons  entitled  to  recover  damages  for  any  injury  caus- 
ing death,  shall  be  the  husband,  widow,  children,  or  parents  of  the 
deceased,  and  no  other  relative ;  and  the  sum  recovered  shall  go  to  them 
in  the  proportion  they  would  take  his  or  her  personal  estate  in  case  of 
intestacy,  and  that  without  liability  to  creditors. 

"Sec.  5.  The  declaration  shall  state  who  are  the  parties  entitled  in 
such  action ;  the  action  shall  be  brought  within  one  year  after  the  death^ 
and  not  thereafter. 

"  Sec.  6.  When  any  person  shall  sustain  personal  injury  or  loss  of  life 
while  lawfully  engaged  or  employed  on  or  about  the  roads,  works,  depots 
and  premises  of  a  railroad  company,  or  in  or  about  any  train  or  car 
therein  or  thereon  of  which  company  such  person  is  not  an  employe,  the 
right  of  action  and  recovery  in  all  such  cases  against  the  company  shall 
be  such  only  as  would  exist  if  such  person  were  an  employe ;  provided, 
that  this  section  shall  not  apply  to  passengers. 

"  Sec.  7.  In  all  actions  now  or  hereafter  instituted  against  common  car- 
[461]  riers  or  corporations,  owning,  operating  or  using  a  railroad  as  a 
public  highway,  whereon  steam  or  other  motive  power  is  used,  to  recover 
for  loss  and  damage  sustained  and  arising  either  from  personal  injuries 
or  loss  of  life,  and  for  which  by  law  such  carrier  or  corporation  could 
be  held  responsible,  only  such  compensation  for  loss  and  damage  shall 
be  recovered  as  the  evidence  shall  clearly  prove  to  have  been  pecuniarily 
suffered  or  sustained." 

^36)  Ehode  Island.— Fnh.  Stat.  1882:— 

"  Sec.  15.  If  the  life  of  any  person,  being  a  passenger  in  any  stage-coach 
or  other  conveyance,  when  used  by  common  carriers,  or  the  life  of  any 
person  whether  a  passenger  or  not,  in  the  care  of  proprietors  of,  or 
common  carriers  by  means  of  railroad  or  steamboats,  or  the  life  of  any 
person  crossing  upon  a  public  highway  with  reasonable  care,  shall  be  lost 
by  reason  of  the  negligence  or  carelessness  of  such  common  carriers, 
proprietor  or  proprietors,  or  by  the  unfitness,  or  negligence  or  carelessness, 
of  their  servants  or  agents,  in  this  State,  such  common  carriers,  proprie- 
tor or  proprietors,  shall  be  liable  to  damages  for  the  injury  caused  by  the 
loss  of  life  of  such  person,  to  be  recovered  by  action  on  the  case,  for  the 
benefit  of  the  husband  or  widow  and  next  of  kin  of  the  deceased  person, 
one  moiety  thereof  to  go  to  the  husband  or  widow,  and  the  other  to  the 
children  of  the  deceased, 

"  Sec.  16.  If  in  such  case  there  shall  be  no  children,  the  whole  of  such 


STATUTKS.  5  7«.> 

damages  shall  go  to  the  husband  or  widow;  and  if  there  l>c  no  huHhan.l 
or  widow,  to  the  next  of  kin,  accordinn  to  the  law  of  thl8  Ktai4-. 
rexulatlng  the  distribution  of  intestate  personal  estate  amongst  the  next 
of  kin. 

"  Sec.  17.  In  addition  to  such  action  in  favor  of  the  widow  and  kindred 
of  the  deceased,  a  like  action  may  be  maintained  for  damages  for  «uch 
loss  of  life,  by  any  person  having  a  direct  pecuniary  Interest  In  the 
continuance  of  the  life  of  such  deceased  person. 

•'  Sec.  18.  Actions  for  the  benefit  of  the  wUlow  and  next  of  kin  of  such 
passenfjer  or  person  may,  in  all  cases,  be  brought  by  the  executor  or 
administrator  of  the  deceased,  whether  such  executor  or  administrator 
be  appointed  and  qualifled  as  such  within  or  without  tliis  State ;  but  where 
there  is  a  widow  only,  she  may,  at  her  option,  sue  in  her  own  name. 

"Sec.  1'.).  To  maintain  such  actions  it  shall  not  be  necessary  first  to 
institute  criminal  proceedings  against  the  defendants. 

•♦  Sec.  20.  In  all  cases  in  which  the  death  of  any  person  ensues  from 
Injury  inflicted  by  the  wrongful  act  of  another,  and  in  which  an  action  for 
damages  might  have  been  maintained  at  the  common  law,  had  dt-ath  not 
ensued,  the  person  inflicting  such  injury  shall  be  liable  to  an  action  for 
damages  for  the  injury  caused  by  the  death  of  such  person,  to  be 
recovered  by  an  action  of  the  case,  for  the  use  of  her  husband, 
[4()2]  widow,  children  or  next  of  kin,  in  like  manner,  and  with  like 
effect,  as  in  the  preceding  Ave  sections  provided." 

(37)  South  Carolina.— Gen.  Stat.  1882,  §§  2183,  2184,  2185:  — 

"Sec.  2315.  Whenever  the  death  of  a  person  shall  be  caused  by  the 
wrongful  act,  neglect,  or  default  of  another,  and  the  act,  neglect  or 
default  is  such  as  would,  if  death  had  not  ensued,  have  entitled  the  party 
injured  to  maintain  an  action  and  recover  damages  In  respect  thereof, 
then,  and  in  every  such  case  the  person  or  corporation  who  would  have 
been  liable  if  death  had  not  ensued,  shall  be  liable  to  an  action  for  dam- 
ages, notwithstanding  the  death  of  the  person  injured,  although  the  death 
shall  have  been  caused  under  such  circumstances  as  make  the  killing  In 
law  a  felony. 

••Sec.  2316.  Every  such  action  shall  be  for  the  beneUt  of  the  wife, 
hosband,  parent,  and  children  of  the  person  whose  death  shall  have  t)een 
80  caused,  and  If  there  be  none  such,  then  for  the  benefit  of  the  heirs  at 
law  or  distributees  of  the  person  whose  death  shall  have  been  so  causi-d 
as  may  be  dependent  on  him  for  support,  and  shall  be  brought  by,  or  In 
the  name  of  the  executor  or  administrator  of  such  pur^on,  and  In  every 
such  action  the  jury  may  give  such  damages  as  they  may  tlilnk  propor- 
tioned to  the  injury  resulting  from  such  death,  to  the  parties  n-spectlvi'ly 
for  whom  and  for  whose  benefit  such  action  shall  be  brought,  and  the 
amount  so  recovered  shall  be  divided  among  the  brfore-mi-ntloned  parties 
In  such  shares  as  they  would  have  oeen  entitled  to  if  the  deceased  h*d 
died  intestate  and  the  amount  recovered  had  been  personal  assets  of  bis 
or  her  estate. 


580  ACTION   FOR   INJURIES    CAUSING    DEATH. 

"  Sec.  2317.  All  such  actions  must  be  brought  within  two  years  from 
the  death  of  such  person,  and  the  executor  or  administrator,  plaintiff  in 
the  action,  shall  be  liable  to  costs,  in  case  there  be  a  verdict  for  the 
defendant,  or  nonsuit,  or  discontinuance  out  of  the  goods,  chattels  and 
lands  of  the  testator,  or  intestate,  if  any,  and  if  none,  then  out  of  the 
proper  goods  and  chattels  of  such  executor  or  administrator." 

(38)   Tennessee.  —  Code  of  Tenn.  1884  :  — 

"  Sec.  3130.  The  right  of  action  which  a  person  who  dies  from  injuries 
received  from  another,  or  whose  death  is  caused  by  the  wrongful  act  or 
omission  or  killing  by  another,  would  have  had  against  the  wrong-doer, 
in  case  death  had  not  ensued,  shall  not  abate  or  be  extinguished  by  his 
death,  but  shall  pass  to  his  widow,  and  in  case  there  is  no  widow,  to  his 
children  or  to  his  personal  representative,  for  the  benefit  of  his  widow 
and  next  of  kin,  free  from  the  claims  of  his  creditors. 

"  Sec.  3131.  The  action  may  be  instituted  by  the  personal  representative 
of  the  deceased;  but  if  he  decline  it,  the  widow  and  children  of  the 
deceased  may,  without  the  consent  of  the  representative,  use  his  name  in 
bringing  and  prosecuting  the  suit,  on  giving  bond  and  security  for  costs, 
or  in  the  form  prescribed  for  paupers.  The  personal  representative  shall 
not,  in  such  case,  be  responsible  for  costs,  unless  he  sign  his  name  to 
the  prosecution  bond. 

'<  Sec.  3132.  The  action  may  also  be  instituted  by  the  widow  in  her 
own  name,  or  if  there  be  no  widow,  by  the  children. 

"Sec.  3133.  If  the  deceased  had  commenced  an  action  before  his 
death,  it  shall  proceed  without  revivor.  The  damages  shall  go  to  the 
widow  and  next  of  kin,  free  from  the  claims  of  the  creditors  of  the 
deceased,  to  be  distributed  as  personal  property. 

"Sec.  3134.  Where  a  person's  death  is  caused  by  the  wrongful  act, 
fault  or  omission  of  another,  and  suit  is  brought  for  damages,  the  party 
suing  shall,  if  entitled  to  damages,  have  the  right  to  recover  for  the  men- 
tal and  physical  suffering,  loss  of  time  and  necessary  expenses  resulting 
to  the  deceased  from  the  personal  injuries,  and  also  the  damages  result- 
ing to  the  parties  for  whose  use  and  benefit  the  right  of  action  survives 
from  the  death  consequent  upon  the  injuries  received." 

[463]     (39)   Texas.—  Const.  1876,  art.  XVI:  — 

•'  Sec.  26.  Every  corporation  or  company  that  may  commit  a  homicide, 
through  willful  act  or  omission,  or  gross  neglect,  shall  be  responsible  in 
exemplary  damages  to  the  surviving  husband,  widow,  heirs  of  his  or  her 
body,  or  such  of  them  as  there  may  be,  without  regard  to  any  criminal 
proceeding  that  may  or  may  not  be  had  in  relation  to  the  homicide." 

Statutory  Provisions.—  Sayles'  Texas  Civil  Stats.  1888,  Tit.  62:  — 

"  Art.  2899.  An  action  for, actual  damages  on  account  of  injuries  causing 
the  death  of  any  person  may  be  brought  in  the  following  cases:  — 

"  "When  the  death  of  any  person  is  caused  by  the  negligence  or  careless- 
ness of  the  proprietor,  owner,  charterer,  hirer  of  any  railroad,  steam- 
boat, stage-coach,  or  other  vehicle  for  the  conveyance  of  goods  or  pas- 


STATUTES.  bal 

sengers,  or  by  the  unfitness,  ne-? licence  or  carlebsness  of  their  servants 
or  aj;eiits;  when  the  dciilh  of  uiiy  person  is  caused  by  the  nenllyence  or 
carelessness  of  the  receiver  or  receivers  or  other  person  or  persons  in 
charge  or  control  of  any  railroad,  their  servants  or  agents,  and  liability 
of  receivers  shall  extend  to  casfs  In  which  the  death  may  be  caused  by 
reason  of  the  bad  or  unsafe  condition  of  the  railroad  or  machinery  or 
other  reason  or  cause  by  which  an  action  may  be  brought  for  damages  on 
account  of  injuries,  the  same  as  if  said  railroad  were  being  operated  by 
the  railroad  company. 

"2.  When  death  of  any  person  is  caused  by  the  wrongful  act,  negli- 
gence unsi<illfulnes8  or  default  of  another." 

(Amendment,  April,  1892.) 

"  Art.  2900.  The  wrongful  act,  negligence,  carelessness,  unskillful- 
ness,  or  default  mentioned  in  the  preceding  article  must  be  of  such  a 
character  as  would,  if  death  had  not  ensued,  have  entitled  the  party  in- 
jured to  maintain  an  action  for  such  injury. 

**  Art.  2901.  When  the  death  is  caused  by  the  willful  act  or  omission, 
or  gross  negligence  of  the  defendant,  exemplary  as  well  as  actual  dam- 
ages may  be  recovered. 

"  Art.  2902.  The  action  may  be  commenced  and  prosecuted,  although 
the  death  shall  have  been  caused  under  such  circumstances  as  amounts  in 
law  to  a  felony,  and  without  regard  to  any  criminal  proceeding  that  may 
be  or  may  not  be  had  in  relation  to  the  homicide. 

"Art.  2903.  The  action  shall  be  for  the  sole  and  exclusive  beneflt  of 
the  surviving  husband,  wife,  children,  and  parents  of  the  person  whose 
death  sha:ll  have  been  so  caused,  and  tlie  amount  recovered  therein  shall 
not  be  liable  for  the  debts  of  the  deceased. 

"Art.  2904.  The  action  may  be  brought  by  all  of  the  parties  entitled 
thereto,  or  by  any  one  or  more  of  them  for  the  benefit  of  all. 

"  Art.  2905.  If  the  parties  entitled  to  the  benefit  of  the  action  shall 
fail  to  commence  the  same  within  three  calendar  months  after  the  death 
of  the  deceased,  it  shall  be  the  duty  of  the  executor  or  the  administra- 
tor of  the  deceased  to  commence  and  prosecute  the  action  unless  re- 
quested by  all  of  the  parties  entitled  thereto  not  to  prosecute  the  same. 

[4G4]  "Art.  290G.  The  action  shall  not  abate  by  the  death  of  either 
party  to  the  record,  if  any  person  entitled  to  the  beneflt  of  the  action 
survives.  If  the  plaintiff  die  pending  the  suit,  when  there  Is  only  one 
plaintiff,  some  one  or  more  of  the  persons  entitled  to  the  money  re- 
covered may,  by  order  of  the  court,  be  made  plaintiff  and  the  suit  be 
prosecuted  to  judgment  in  the  name  of  such  plaiutiff  for  the  beneflt  of 
the  persons  entitled. 

"  Art.  2907.  If  the  sole  plaintiff  die  pending  the  suit,  and  he  is  the 
only  party  entitled  to  the  money  recovered,  the  suit  shall  abate. 

"  Art.  2908.  If  the  defendant  die  pending  the  suit,  his  executor  or 
administrator  may  be  made  a  party  and  the  suit  be  prosecuted  to  judg- 
ment as  thoush  such  defendant  had  continued  alive.     The  judgment  in 


582  ACTION   FOR   INJURIES    CAUSING   DEATH. 

such  case,  if  rendered  in  favor  of  the  plaintiff,  shall  be  paid  in  due  course 
of  administration. 

"Art.  2909.  The  jury  may  give  such  damages  as  they  may  think  pro- 
portioned to  the  injury  resulting  from  such  death;  and  the  amount  so 
recovered  shall  be  divided  among  the  persons  entitled  to  the  benefit  of 
the  action  or  such  of  them  as  shall  then  be  alive  in  such  shares  as  the 
jury  shall  find  by  their  verdict." 

"  Art.  1255.  In  cases  arising  under  the  provision  of  title  LII.,  the  suit 
shall  not  abate  by  the  death  of  either  party  pending  the  suit,  but  in  such 
case,  if  the  plaintiff  dies,  where  there  is  only  one  plaintiff  some  one  or 
more  of  the  persons  entitled  to  the  money  recovered  may  be  substituted, 
and  the  suit  prosecuted  to  judgment  in  the  name  of  such  party  or  per- 
sons for  the  benefit  of  the  parties  entitled ;  if  the  defendant  dies,  his 
executor,  administrator  or  heir  may  be  made  a  party  and  the  suit  prose- 
cuted to  judgment  as  provided  for  in  previous  articles  of  this  chapter." 

(40)    Utah.—  Comp.  Laws,  Utah,  1888:  — 

"  Sec.  2961.  Whenever  the  death  of  a  person  shall  be  caused  by  wrong- 
ful act  or  default,  and  the  act,  neglect  or  default  is  such  as  would,  if  the 
death  had  not  ensued,  have  entitled  the  party  injured  to  maintain  an 
action  and  recover  damages  in  respect  thereof,  then,  and  in  every  such 
case  the  person  who  or  the  company  or  corporation  which  would  have 
been  liable  if  death  had  not  ensued,  shall  be  liable  to  an  action  for  dama- 
ges, notwithstanding  the  death  of  the  person  injured,  and  although  the 
death  shall  have  been  caused  under  such  circumstances  as  amount  in  law 
to  felony. 

•'  Sec.  2962.  Every  such  action  shall  be  brought  by,  and  in  the  names  of, 
the  personal  representatives  of  such  deceased  person,  and  the  amount 
received  in  every  such  action  shall  be  distributed  by  direction  and  decree 
of  the  proper  probate  court,  to  such  persons  (other  than  creditors)  as 
are  by  law  entitled  to  distributive  shares  of  the  estate  of  such  deceased 
person,  and  in  such  proportions  as  are  prescribed  by  law;  provided,  that 
every  such  action  shall  be  commenced  within  the  two  years  after  the 
death  of  such  deceased  person ;  and  provided  fia-ther,  that  the  damages 
so  recovered  shall  not,  in  any  case,  exceed  the  sum  of  ten  thousand 
dollars." 

"  Sec.  3178.  A  father,  or,  in  case  of  his  death  or  desertion  of  his  family, 
the  mother,  may  maintain  an  action  for  the  death  or  injury  of  a  minor 
child;  and  a  guardian  for  the  injury  or  death  of  his  ward,  when  such 
injury  or  death  is  caused  by  the  wrongful  act  or  neglect  of  another, 
such  action  may  be  maintained  against  the  person  causing  the  injury  or 
death,  or  if  such  person  be  employed  by  another  person  who  is  respon- 
sible for  his  conduct,  also  against  sach  other  person. 

"  Sec.  3179.  When  the  death  of  a  person  not  being  a  minor  is  caused 
by  the  wrongful  act  or  neglect  of  another  his  heirs  or  personal  represent- 
ative may  maintain  an  action  for  damages  against  the  person  causing 
the  death,  or  if  such  person  be  employed  by  another  person  who  is 


STATUTKS.  5H3 

respoiisihlo  for  his  cc)n(Uict,  then  also  aj^ainst  sucli  other  jiersoii.  In 
every  action  uniier  this  and  the  preceding  section,  sncli  damages  may 
be  given  as  under  all  the  circumstances  of  the  case  may  bo  just." 

(41)   Virmont.—  liev.  Laws,  1880:  — 

"  Sec.  21 38.  When  the  death  of  a  person  is  caused  by  the  wrongful  act, 
neglect  or  default  of  a  person,  either  natural  or  artillcial,  and  the  act, 
neglect  or  default  Is  such  as  would,  if  death  hud  not  ensued,  have  entitled 
the  party  injured  to  muiutain  an  action,  and  recover  damages  in  respect 
thereof,  the  person  or  corporation  liable  to  such  action  if  death  had  not 
ensued  shall  be  liable  to  an  action  for  damages  notwithstanding  the  death 
of  the  person  injured,  and  although  the  death  is  caused  under  such  cir- 
cumstances as  amount  in  law  to  a  felony. 

"  Sec.  2139.  Such  action  shall  be  brought  In  the  name  of  the  personal 
representative  of  such  deceased  person,  and  commenced  within  two 
years  from  the  decease  of  such  person,  and  the  court  or  jury,  before 
whom  the  issue  is  tried,  may  give  such  damages  as  are  just  with  refer- 
erence  to  the  pecuniary  injury  resulting  from  such  death  to  the  wife  and 
next  of  kin,  and  the  amount  recovered  shall  be  for  the  benefit  of  such 
wife  and  next  cif  kin  who  shall  receive  the  same  proportions  as  in  the 
distribution  of  the  personal  estate  of  persons  dying  Intestate." 

(tl)    Virginia.— Code  y a.  1887. 

"  Sec.  2902.  Whenever  the  death  of  a  person  shall  be  caused  by  the 
wrongful  act,  neglect,  or  default  of  any  person  or  corporation,  or  of  any 
ship  or  vessel,  and  the  act,  neglect  or  default  is  such  as  would  Of  death 
had  not  ensued)  have  entitled  the  party  injured,  to  maintain  an  action, 
or  to  proceed  in  rem  against  said  ship  or  vessel,  or  in  prrsnnam  against 
the  owners  thereof  or  those  having  control  of  her,  and  to  recover 
damages  In  respect  thereof,  then,  and  in  every  such'case,  the  person  who, 
or  corporation  or  ship  or  vessel  which,  would  have  been  liable  If  death 
had  not  ensued,  shall  be  liable  to  an  action  for  damages,  or.  If  a  ship  or 
vessel,  to  a  libel  m  rem,  and  her  owners  or  those  responsible  for  her 
acts  or  defaults  or  negligence  to  a  libel  in  personam,  notwithstanding 
the  death  of  the  person  injured,  and  although  the  death  shall  have  been 
caused  under  such  circumstances  as  amount  in  law  to  a  felony. 

"  Sec.  2903.  P^very  such  action  shall  be  brought  by  and  in  the  name  of 
the  personal  representative  of  such  deceased  person  and  within  twelve 
calendar  months  after  his  or  her  death.  The  jury  in  any  such  action  may 
award  such  damages  as  to  it  may  seem  fair  and  just,  not  exceeding 
$10,000,  and  may  direct  in  what  proportion  they  shall  be  distributed  to 
the  wife,  husband,  parent  and  child  of  the  deceased.  But  nothing  in 
this  section  shall  be  construed  to  deprive  the  court  of  the  power  to  grant 
new  trials  as  in  other  cases. 

•'  Sec.  2904.  The  amount  recovered  in  any  such  action  shall,  after  the 
payment  of  costs  and  reasonable  attorney's  fees,  be  paid  to  the  wife,  hus- 
band, parent  and  child  of  the  deceased  in  such  proportion  as  the  jury 
may  have  directed,  or  if  they  have  not  directed,  according  to  the  statute 


584  ACTION    FOR    INJURIES    CAUSING    DEATH. 

of  distributions,  and  shall  be  free  from  all  debts  and  liabilities  of  the  de- 
ceased; but  if  there  be  no  wife,  husband,  parent  or  child,  the  amount  so 
received  shall  be  assets  in  the  hand  of  the  personal  representatives  to  be 
disposed  of  according  to  law." 

Sec.  2905  provides  how  personal  representatives  may  compromise 
claim  for  damages  under  preceeding  sections.  Sec.  2906  provides  that 
action  shall  not  abate  by  death  of  defendant  or  dissolution  of  defendant 
corporation,  and  if  deceased  had  brought  an  action  how  on  his  death  to 
be  revived  and  pleadings  amended. 

(43)  Washington  Territory.  —  Hill's  Anno.  Stats,  and  Codes,  1891. 
Code  of  Proc. : — 

"  Sec.  138.  The  widow  or  widow  and  her  children,  or  child  or  children 
if  no  widow,  of  a  man  killed  in  a  duel,  shall  have  a  right  of  action  against 
the  person  killing  him,  and  against  tlje  seconds  and  all  aiders  and  abet- 
tors. When  the  death  of  a  person  is  caused  by  the  wrongful  act  or 
neglect  of  another,  his  heirs,  or  personal  representatives,  may  maintain 
an  action  for  dama'j;es  against  the  person  causing  the  death;  or  when  the 
death  of  a  person  is  caused  by  an  injury  received  in  falling  through  any 
opening  or  defective  place  in  any  sidewalk,  street,  alley,  square  or  wharf, 
his  heirs  or  personal  representatives  may  maintain  an  action  for  damages 
agains  the  person  whose  duty  it  was,  at  the  time  of  the  injury,  to  have 
kept  In  repair  such  sidewalk  or  other  place.  In  every  such  action  the 
jury  may  give  such  damages,  pecuniary  or  exemplary,  as,  under  all  the 
circumstances  of  the  case,  may  seem  to  them  just. 

"  Sec.  139.  A  father,  or,  in  case  of  his  death  or  desertion  of  his  family, 
the  mother,  may  maintain  an  action  as  plaintiff  for  the  injury  or  death  of 
a  child,  and  a  guardian  for  the  injury  or  death  of  his  ward." 

*•  Sec.  148.  No  action  for  a  personal  injury  to  any  person  occasioning 
his  death  shall  abate,  nor  shall  such  right  of  action  determine  by  reason 
of  such  death  if  he  have  a  wife  or  child  living,  but  such  action  may  be 
prosecuted  or  commenced  and  prosecuted  in  favor  of  such  wife,  or  In 
favor  of  the  wife  and  children,  or  if  no  wife,  in  favor  of  such  child  or 
children. 

"  Sec.  703.  When  the  death  of  a  person  is  caused  by  the  wrongful  act  or 
omission  of  another,  the  personal  representatives  of  the  former  may 
maintain  an  action  at  law  therefor  against  the  latter,  if  the  former  might 
have  maintained  an  action,  had  he  lived,  against  the  latter,  for  an  injury 
caused  by  the  same  act  or  omission.  Such  action  shall  be  commenced 
within  two  years  after  the  death,  and  the  damages  therein  shall  not 
exceed  five  thousand  dollars,  and  the  amount  recovered,  if  any,  shall  be 
administered  as  other  personal  property  of  the  deceased  person. 

(44)  West  Virginia.— Code  of  W.  Va.,  3d  ed.,  1891,  ch.  103,  p.  725:  — 
"  Sec.  5.  Whenever  the  death  of  a  person  shall  be  caused  by  wrongful 

act,  neglect  or  default,  and  the  act,  neglect  or  default  is  such  as  would 
(if  death  had  not  ensued)  have  entitled  the  party  injured  to  maintain  an 
action  to  recover  damages  in  respect  thereof ;  then,  and  in  every  sacb 


STATUTES.  5b 5 

case,  the  person  who,  or  the  corporation  which,  would  have  been  liable 
If  death  had  not  ensued,  shall  be  liable  to  an  action  for  damsKes,  not- 
withstanding the  death  of  the  person  injured,  and  although  the  death 
.shall  have  been  caused  under  such  circumstances  as  amount  in  law  to 
murder  in  the  Orst  degree,  or  manslaughter. 

"  Sec.  G.  Every  such  action  shall  be  brought  by  and  in  the  name  of  the 
personal  representative  of  such  deceased  person;  and  the  amount  recov- 
ered in  every  such  action  shall  be  distributed  to  the  parties,  aud  in  the 
proportions  provided  by  law  in  relation  to  the  distribution  of  personal 
estates  left  by  persons  dying  intestate.  In  every  such  action  the  jury 
may  give  such  damages  as  they  shall  deem  fair  and  just,  not  exceeding 
ten  thousand  dollars,  aud  the  amount  so  recovered  .shall  not  be  subject  to 
any  debts  or  liabilities  of  the  deceased  ;  provided,  that  every  such  action 
shall  be  commenced  within  two  years  after  the  death  of  such  deceased 
person." 

(45)  Wiscojisin.—  Riiv.  Stat.  Wis.  1878,  p.  1020,  chap.  178:— 

"  Sec.  4225.  Whenever  the  death  of  a  person  shall  be  caused  by  a 
wrongful  act,  neglect  or  default,  and  the  act,  neglect  or  default  is  such 
as  would,  if  death  had  not  ensued,  have  entitled  the  party  injured  to  main- 
tain an  action  aud  recover  damages  in  respect  thereof,  then,  and  in  every 
such  case,  the  person  who,  or  the  corporation  which,  would  have  been 
liable  if  death  had  not  ensued,  shall  be  liable  to  an  action  for  damages 
notwithstanding  the  death  of  the  person  injured;  provided,  that  .such 
action  shall  be  brought  for  a  death  caused  in  this  State,  and  in  some  court 
established  by  the  constitution  and  laws  of  the   same. 

"  Sec.  422G.  Every  such  action  shall  be  brought  by  and  in  the  name  of 
the  personal  representative  of  such  deceased  person,  aud  the  amount 
recovered  shall  belong  aud  be  paid  over  to  the  husband  or  widow  of  such 
deceased  person,  if  such  relative  survive  him  or  her;  but  if  no  husband 
or  widow  survive  the  deceased,  the  amount  recovered  shall  be  paid  over 
to  his  or  her  lineal  descendants,  and  to  his  or  her  lineal  ancestors,  in 
default  of  such  descendants,  aud  in  every  such  action  the  jury  may  give 
SDch  damages  not  exceeding  five  thousand  dollars  as  they  may  deem  fair 
and  just  in  reference  to  the  pecuniary  iujury  resulting  from  such  death  to 
the  relatives  of  the  deceased  specitied  in  tliis  section." 

(46)  Wyomiiuj. —  Statutes,  1887  —  Actions  for  death  which  survive :  — 
'•  Sec.  23{j4a.  Whenever  the    death  of  a  person  shall  be  cau.-icil   by 

•wrongful  act,  neglect  or  default  and  the  act,  neglect  or  default 
Is  such  as  would  (if  death  had  not  eusueil)  have  entitled  the  party 
Injured  to  maintain  an  action  to  recover  damages  in  respect  thereof, 
then  and  in  every  such  case,  the  person  who,  or  tlie  corporation 
which,  would  have  been  liable  If  death  had  not  ensued,  shall  be  liable  to 
an  action  for  damages,  notwithstanding  the  death  of  tJie  person  in- 
jured, and  although  the  death  shall  have  been  caused  under  such 
circumstances  as  amount  in  law  to  murder  in  the  flrst  degree  or  second 
degree  or  manslaughter. 


586  ACTION    FOR    INJURIES    CAUSING    DEATH. 

•'  Sec.  2364b.  Every  such  action  shall  be  brought  by  and  in  the  name 
of  the  personal  representative  of  such  deceased  person ;  and  the  amount 
recovered  in  any  such  action  shall  be  distributed  to  the  parties  and  in 
the  proportions  provided  by  law,  in  relation  to  the  distribution  of  per- 
sonal estates  left  by  persons  dying  intestate.  In  every  such  case  the 
jury  shall  give  such  damages  as  they  shall  deem  fair  and  just,  not  ex- 
ceeding five  thousand  dollars,  and  the  amount  so  recovered  shall  not  be 
subject  to  any  debts  or  liabilities  of  the  deceased;  provided,  that  any 
such  action  shall  be  commenced  within  two  years  after  the  death  of  the 
deceased  person. 


[468]     CHAPTER  VIII. 

DAMAGES. 

•*  It  is  not  to  be  expected,"  said  Mr.  Justice  Cresswcll, 
•'that  a  jury  [in  a  case  of  tort]  will  measure  their  verdict 
so  nicely  as  in  cases  of  contract"  (a),  and  no  doubt  this 
applies  to  cases  of  negligence,  and  receives  a  constant 
illustration  in  the  verdicts  given  by  juries  in  actions  aris- 
ing out  of  railway  accidents. 

In  some  cases  the  amount  of  damages  will  depend  upon 
the  character  of  the  negligence,  as  for  instance  if  it  be  of 
u  reckless  character  (b).  And  upon  the  other  hand,  it 
should  seem  that  the  conduct  of  the  plaintitV  (not  amount- 
ing to  contributory  negligence  so  as  to  be  an  answer  to 
the  action),  may  be  given  in  evidence  in  mitigation  of 
damages  (c). 

It  is  said  that  exemplary  damages  will  not  be  allowed 

(a)  Williams  r.  Currle,  1  C.  B.   848;  ton  v.  Christie,  2  B.  &P.  224;  Llnford  r. 

Huckle  V.  Money,2  Wlls.  205.  Lake,  3  N.  J.  27(i;  27  L.  J.  Kx.  334;  U.— 

(6)  Emblem  r.  Myers,  6  H.  &  N.  54 ;  v.  Mitchell,  9  C.  &  P.  C13 ;  Atlanta  Ky  Co., 

30  L,  J.  Ex.  71;  Bell  v.  Midland  Uy.  Co.,  v.  Wyly,  f5  Ga.  120;  Dush  v.  Fltzhiigh, 

10  C.  B.   N.  S.  287;  30    L.  J.  C.    1'.  273;  2  Lea  (Tenn.),  307.    So  also  the  defcnd- 

Wallace  v.  New  York,  2  Illlt.  440;  Heil  v.  am  must  show  that  some  of  the  Injury 

Glandllng,  [42    Fa.    St.    4'J3;   Thomas  v.  would  have  happened  apart    from    bis 

Harris,  27  L.  J.  Ex.  353.  act,  Workman  r.  G.  N.  W.  Ry.  Co.,  32  L. 

(c)  Arden  v.  Goodacre,  11  0.  B.  371 ;  J.  Q.  B.  279. 
Perkkis  r.  Vaughan,  7  So.  N.  R.  886 ;  Wal- 

(c)  Damages. —  Nashville,  etc.,  R.  Co.  v.  Prince  (G  Ileisk.  587),  (in 
action  for  Injuries  causing  death,  evidence  that  deceased  was  drunken 
and  worthless  and  made  no  provision  for  his  family  admissible  in  mitiixa- 
llon  of  damages).— The  Cleveland,  etc.,  R.  Co.u.  Sutherland, 19  Ohio  St. 
151;  Devol  V.  "Van  Vranker,  29  Hun,  201. 

Evidence  of  disturbed  marital  relations,  in  mitigation  of  damages,  is 
not  reversible  error,  where  a  husband  has  sued  for  tlie  loss  of  liis  wife's 
services  and  society,  caused  by  defendant's  negligence. —  Sullivan  v. 
Lowell  &  D.  St.  Ry.  Co.,  1G2  Mass.  53G;  39  N.  E.  Rep.  185. 

(587) 


588  DAMAGES. 

against  a  master  for  the  negligence  of  his  servants,  how- 
ever gross,  if  he  is  personally  free  from  fault,  and  has  main- 
tained personal  supervision  over  them  (d),  but  if  a  master 
[469]  employs  a  notoriously  drunken  driver  (e)  be  is 
answerable  for  his  negligence. 

Recovery  of  insurance  money  cannot  be  set  up  in  miti- 
gation of  damages  for  negligence  (/). 

Where  the  plaintiff  sued  the  owner  of  an  omnibus  for  per- 
sonal injuries,  but  had  accei^ted  a  sum  of  money  from  the 
driver  awarded  by  a  magistrate  as  compensation,  it  was  held 
a  good  answer  to  the  action,  even  though  the  sum  was  quite 
inadequate,  and  although  the  money  was  paid  by  the  driver 
and  not  by  the  owner  of  the  omnibus  (^) .  So  if  a  plaintiff 
obtains  a  judgment  against  a  master  or  a  servant,  he  can- 
not afterwards  sue  the  other  of  them  {h). 

If  a  chattel  be  lost  or  destroyed  through  the  negligence 
of  the  defendant  the  measure  of  the  damages  is  the  value 
of  the  chattel,  but  if  the  chattel  be  only  injured  then  the 
depreciation  in  its  value  is  the  true  measure,  with  an  extra 

{d)  Morford  v.  Woodworth,  Ind.  83;  276;  Eureka  Fertilizer  Co.  v.  Baltimore 

Shearman,  s.  601.  C.  S.  &  R.  Co.,  7S  Md.  179;  27  Atl.  Rep. 

(e)  Frink  v.  Coe,  4   Greene  (Iowa),  1035 ;  Lake  Erie  &  W.  R.  Co.  v.  Grlflln,  8 

556.  Ind.  App.  47;  35  N.  E.  Rep.  396;  Henning 

(/)  Yates   V.  Whyte,  4  Bing.   N.   C.  v.  Western  Union  Tel.  Co.,  41  Fed.  Bep. 

272;  Bradbarne  v.  G.  W.  Ry.  Co.,  44  L.  864;  Hammond  v.    Schiff,  100  N.  C.  161; 

J.  Ex.  9.    The  insurer  is  entitled  to  his  6  S.  £.  Rep.  753 ;  Dillon  v.  Ilunt,  105  Mo. 

share  of  the  damages  recovered.  Ran-  154;  16  S.  W.  Rep.  516;  St.  Louis  A.  &  T. 

dall  V.  Cockran,  1  Yes.  Sen.  97;  Mason  v.  Ry.  Co.  r.  Fire  Assoc,  of  Phila.,  55  Ark. 

Sainsbury,  3  Doug.  64;  Clark  t-.  Ely  thing,  163;  18  S.  W.  Rep.  42. 

2B.  &  C.  254.    The  benefit  of  an  insur-  note  (d)]. 

ance  to  survivors  may  be  set  up  under  {g)  Wright  w.  London  General  Omnl- 

Lord  Campbell's  Act,    see    Ch.   VII.;—  bus  Co.,  46  L.  J.  Q.  B.  493. 

[Lindsay  r.  Brldgewater  Gas  Co.,  14  Fa.  (ft)  Addison  on  Torts.  5th  ed.,  p.  102. 
Co.  Ct.  R.  181;  24  Pittsb.  Leg.  J.  (N.  8.) 

(d)  Iq  Cleghorn  v.  New  York,  etc.,  R.  Co.,  56  N.  Y.  47,  the  court 
said : — 

"  For  injuries  by  the  negligence  of  a  servant  while  engaged  in  the 
business  of  a  master  within  the  scope  of  his  employment,  the  latter  la 
liable  for  compensatory  damages,  but  for  such  negligence,  however 
gross  or  culpable,  he  is  not  liable  to  be  punished  in  punitiva  damages 
unless  he  is  chargeable  with  gross  misconduct.     Such  misconduct  may 


DAMAGES  CHAITKL.  589 

allowance  for  the  loss  of  the  use  of   the  chattel  while  it  is 
beinjr  repaired  or  replaced. 
Thus  in  an  action  for  injury  to  a  horse  the  proper  meas- 

be  established  by  showing  that  the  act  of  the  servant  was  anthorized  or 
ratified  or  that  the  master  employed  or  retained  the  servant  knowing 
that  he  was  incompetent  or  from  bad  habits  unlit  for  the  position  he  occu- 
pied. Something  more  than  ordinary  negligence  Is  requisite;  It  must  be 
reckless  and  of  a  criminal  nature  and  clearly  established.  Corporations 
Incur  this  liability  as  well  as  private  persons.  If  a  railroad  company, 
for  instance,  knowingly  and  wantonly  employs  a  drunken  engineer  or 
switchman ;  or  retains  one  after  knowledge  of  his  habits,  clearly  brought 
home  to  the  company,  or  to  a  superintending  agent  authorized  to  employ 
and  discharge  him,  and  injury  occurs  by  reason  of  such  habits,  the  com- 
pany may  and  ought  to  be  amenable  to  the  se^'erest  rule  of  damages; 
but  I  am  not  aware  of  any  principle  which  permits  a  jury  to  award  exem- 
plary damages  in  a  case  which  does  not  come  up  to  this  standard;  or  to 
graduate  the  amount  of  >uch  damages  by  their  views  of  the  propriety  of 
the  conduct  of  the  defendant  unless  such  conduct  is  of  the  character 
above  specified." 

Punitive  damages  are  allowed  for  gross  negligence  in  some  cases. — 
Maysville,  etc.,  R.  Co.  v.  Ilerrick,  13  Bush,  122;  Taylor  v.  Grand  Trunk 
R.  Co.,  48  N.  H.  304;  Kansas  Pac.  R.  Co.  v.  Kessler,  IS  Kan.  523;  Fell  c. 
Northern  Pac.  R.  Co.,  44  Fed.  Rep.  248. 

When  the  act  or  omission  is  willful  or  wanton. —  Wilkinson  r.  Drew, 
75  Me.  360;  Quinn  v.  South  Carolina  Ry.  Co.,  29  S.  C.  381 ;  7  S.  E. 
Rep.  C14;  Rucker  p.  Smoke,  37  S.  C.  377;  16  S.  E.  Rep.  40;  ChatUnooga, 
R.  &  C.  R.  Co.  V.  Liddell,  85  Ga.  482;  11  S.  E.  Rep.  853;  McFee  v, 
Vicksburg,  etc.,  R.  Co.,  42  La.  Ann.  790;  7  So.  Rep.  720. 

But  they  are  not  allowed  for  mere  negligence. —  LouisTllle,  etc.,  R. 
Co.  r.  Shanks,  94  Ind.  598;  Colvin  v.  Peck,  G2  Conn.  155;  25  Atl.  Rep. 
355;  EastTenn.,  U.  &  G.  Ry.  Co.  v.  Lc,  99  Tenn.  570;  18  S.  W.  Rep. 
2C8.  However,  the  master  may  become  liable  for  exemplary  damages,  if 
he  authorizes  or  ratifies  his  servant's  act. —  Muckle  v.  Rochester  Ry.  Co., 
79  Ilun,  32;  29  N.  Y.  S.  Rep.  732;  Staples  r.  ScLmid  (R.  I.),  2G  Atl- 
Rep.  193. 

They  may  be  allowed  against  a  corporation  for  willful  misconduct  or 
recklessness. —  Milwaukee,  etc.,  R.  Co.  v.  Arms,  91  U.  S.  489;  Ilopkins 
V.  Atlantic,  etc.,  R.  Co.,  36  N.  H.  9. 

Where  there  is  a  wanton  disregard  of  the  safety  of  others. —  IHlnois, 
etc.,  R.  Co.  V.  Hammer,  72  111.  353. 

They  are  not  generally  recoverable  against  a  municipal  corporation. — 
Jacksonville  v.  Lambert,  02  111.  519;  Chicago  c.  Kelly,  09  111.  477;  Par- 
sons r.  Lindsay,  26  Kan.  426;  Wilson  v.  Wheeling,  19  W.  Va.  323.  See 
Beach  Pub.  Corp.,  §  1138. 


590  DAMAGES. 

ure  of  damages  is  the  keep  of  the  horse,  the  farrier's  bill, 
and  the  loss  in  the  value  of  the  horse  (^),  with  some  reason- 
able sum  for  any  pecuniary  loss  of  the  use  of  the  horse 
while  under  treatment  {j  ),  or  for  hiring  another  horse  to  do 
his  duty  {h). 

(i)  Hnghes  v.  Quentin,  8  C.  &  P.  703.  (,1c)  Johnson  v.  Holyoke,  105  Mebb.  80. 

(J)  Watson  V.  Lisbon  Bridge  Co.,  14 
Maine,  201;  Gillett  v.  Western  Ry.  Co., 
8  Allen,  560. 

(k)  The  damages  recoverable  for  the  destruction  of  a  chattel  are  its 
value  at  the  time  of  the  injury.  —  Atkinson  v.  Atlantic,  etc.,  R.  Co.,  63  Mo. 
367;  Toledo,  etc.,  R.  Co.  v.  Johnson,  74  111.  83;  Chapman  v.  Chicago, 
etc.,  R.  Co.,  26  Wis.  304;  Ingram  v.  Rankin,  47  Wis.  406;  Henry  v.  Cen- 
tral R.  &  B.  Co.,  89  Ga.  815;  15  S.  E.  Rep.  757;  Stauffer  v.  Miller  Soap 
Co.,  151  Pa.  St.  330;  25  Atl.  Rep.  95;  31  W.  N.  C.  13;  Jacksonville,  T.  & 
K.  W.  Ry.  Co.  V.  Peninsular  L.,  T.  &  Mfg.  Co.,  27  Fla.  1,  157;  9  So. 
Rep.  661 ;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Johnson  (Tex.  Civ.  App.),  25  S.  W. 
Rep.  1015;  Union  Pac,  D.  &  G.  Ry.  Co.  v.  Williams,  3  Colo.  App.  626; 
34  Pac.  Rep.  731;  Crawford  v.  International  &  G.  N.  R.  Co.  (Tex.  Civ- 
App.),  27  S.  W.  Rep.  263;  Yoakum  v.  Dunn,  1  Tex.  Civ.  App.  524;  21  S. 
W.  Rep.  411  Parmelee?;.  Raymond,  43  III.  App. [609;  Godwin  v.  Wilming- 
ton &  W.  R.  Co.,  104  N.  C.  146 ;  10  S.  E.  Rep .  136 ;  Bullington  v.  Newport 
News  &  M,  V.  Co.,  32  W.  Va.  436 ;  9  S.  E.  Rep.  876 ;  Chicago  &  A.  Ry.  Co. 
V.  Barnes,  116  Ind.  126;  18  N.  E.  Rep,  459;  Galveston,  H.  &  S.  A.  Ry.  Co. 
V.  Matula,  (Texas),  19  S.  W.  Rep.  376. 

(For  the  loss  of  a  family  portrait,  the  original  cost  and  the  probable 
expense  of  reproduction.  —  Houston,  etc.,  R.  Co.  v.  Burke,  55  Tex.  323; 

40  Am.  Rep.  808.) 

So,  for  the  wrongful  legal  seizure  of  goods,  the  damage  is  the  value 
thereof  at  the  time  of  taking  with  interest  to  the  time  of  trial,  —  Perrin 
V.  Wells,  155  Pa.  St.  299;  26  Atl.  Rep.  543;  Coulson  v.  Panhandle  Nat. 
Bank,  54  Fed.  Rep,  855, 

And  where  it  is  injured,  damages  for  the  depreciation  in  value  and  for 
the  loss  of  its  use  during  the  time  it  is  being  repaired, —  Oleson  v.  Brown, 

41  Wis.  413;  Wheeler  v.  Townshend,  42  Vt.  15;  Street  v.  Laumier,  34 
Mo.  469;  Shelbyville,  etc.,  R.  Co.  v.  Lewark,  4  Ind.  471;  Chicago,  B.  & 
Q.  R.  Co.  V.  Metcalf  (Nebraska),  63  N.  W.  Rep.  51;  Hoffman  v.  Metro- 
politan St.  Ry.  Co.,  51  Mo.  App.  273. 

In  McLaughlin  v.  Bangor  (58  Me,  399),  it  was  held  that  damages 
could  not  be  recovered  for  the  loss  of  the  use  of  a  chattel. 

And  where  the  injury  is  to  a  chattel  other  than  a  domestic  animal,  dam- 
ages for  the  cost  of  repairs  are  not  recoverable.  — Ryan  v.  Lewis,  3 
Hun,  429, 

For  injury  to  a  domestic  animal  the  owner  is  entitled  to  recover  for 


DAMAGES  —  BKEACII  OF  CONTRACT.         5'Jl 

[470]  Wo  have  seen  anle,  pp.  2,  2(1,  that  a  man  is  not 
rct^ponsiblc  for  all  the  consequences  which  follow  upon  his 
negli-  [471]  gent  act,  but  only  for  those,  which  might  bo 
reasonably  expected  to  follow  by  a  prudent  man  (/).  So 
where  a«manon  a  coach,  in  a  jieriious  position  in  consequence 
of  a  negligent  act  of  the  proprietor,  jumped  off  and  broke 
his  leg,  the  coach  proprietor  was  held  liable  {m).  But 
where  the  plaintiff  tried  to  shut  a  railway  carriage-door  when 
the  train  was  in  motion,  it  was  held  that  the  company 
were  not  liable  for  the  consequences  {n),  and  in  general 
damages  are  not  recoverable  where  they  are  too  re- 
mote [^o).  But  all  damages  which  under  ordinary  circum- 
stances might  be  expected  to  result  are  recoverable  (jo). 

Where  the  negligence  arises  in  the  performance  of  a  con- 
tract, the  damages  must  be  such  as  can  reasonal)ly  be  sup- 
posed to  have  been  in  the  contemplation  of  both  parties  at 
the  time  they  made  the  contract  as  the  probable  result  of 
the  breach  of  it  {q).     So  where  the  defendant  was  a  collec- 

(D  Greenland  r.  Chaplin, 5  Exch.  218;  62C;  10  So.   Rep.  .33.T;  Nelson  v.  Hoston 

Cox  r.  Burbldge,  13  C.  B.  N.  S.  430;  32  L.  &  X.  R.  Co.,  155  Mass.  35r, ;  29  N,  E.  Ucp. 

J.  C.  P.  89.  5SG ;  Loudy  v.  Clarke,  45  Minn.  477 ;  48  N. 

(m)  Jones  V.  Boyce.l  Stark.  493.  W.  Rep.  25|. 

(h)  Adams  f.  Lancashire  &  Yorkshire  (p)  RIgby  v.    Hewitt,  5   Exch.   248. 

Ry.  Co.,  L.  R.  4  C.  P.  739.  Workman  r.  G.  N.  Ry.  Co.,  32  L.  J.  Si.  B. 

[o)  See  Ch    I.,  ante;  —  [Mann  v.  Tay-  79;  Greenland  r.  Chaplin,  5  Exch.  243. 
lor.  78  la.  355 ;  43  K.  W.  Rep.  220 ;  Goodell  (q)  Hadley  v.  Baxendale,  23  L.  J.  Ex ; 

r.  Hluff  City  \X)T.  Co.,  57  Ark.  203;  21  S.  179;  see  the  recent  case  of  Philllpps  r. 

W.  Rep.  104;  Burton  v.  Henry,  90  Ala.  L.  &  S.  W.  Ry.  Co.  (Injuries  to  railway 

291;  7  So.  Rep.  925;  St.  Louis,  A.  &T.  Ry.  passenger),  49  L.  J.  0.  A.  233;  L.  U.  5  Q. 

Co.  r.  Neel.  .56  Ark.  279;  19  S.  W.  Rep.  B.  D.  78. 
963;  Reed  Lumber  Co.  v.  Lewis,  94  Ala. 

expenses  Incurred  in  attempting  to  cure  it. —  Street  v.  Laumier,  34:  Mo. 
469;  Watson  v.  Lisbon  Bridge,  14  Me.  201;  Sullivan  County  r.  Arnett, 
(Indiana),  I'J  N.  E.  Rep.  299;  Gulf,  C.  &  S.  F.  Ily.  Co.  v.  Kc-itli,  74  Tex. 
287;  11  S.  W.  Rep.  1117;  Galveston,  II.  &  S.  A.  Ry.  Co.  o.  Tuckett  (Tex. 
Civ.  App.),  25  S.  W.  Rep.  670. 

The  measure  of  damages  for  property  lost  by  the  fault  of  a  ferryman 
in  its  transportation  was  held  to  be  tiie  value  of  the  property  with  com- 
pensation for  the  actual  expenses  and  loss  of  it  caused  by  the  detention 
on  account  of  the  accident. —  Evans  v.  Rudy,  34  Arli.  383. 

(?)  This  is  the  rule  in  this  country.  —  First  National  Bank  v.  Western 
Union,   30  Ohio  St.  555;  27   Am.  Rep.  486;  United,    etc.,   Tel.   Co.  v. 


592  DAMAGES. 

tor  of  telegrams,  and  received  one  in  cypher  which 
was    unintelligible    to    him   from    the    plaintiffs,    and    he 

Gildersleeve,  29  Md.  232;  9  Am.  Rep.  149;  Candee  v.  Western  Union, 
etc.,  Tel.  Co.,  34  "Wis.  471;  17  Am.  Rep.  422;  see  note  Western  Union 
Tel.  Co.  V.  Blanchard,  45  Am.  Rep.  496;  Mihills  Mnfg.  Co.  v.  Day.  50  la. 
250;  Billmeyer  v.  Wagner,  9  Pa.  St.  92;  Furstenburg  v.  Fawsett,  61 
Md.  184;  Graves  v.  Glass,  86  la.  261;  53  N.  W.  Rep.  231;  Bates  v. 
Diamond  Crystal  Salt  Co.,  36  Neb.  900;  55  N.  W.  Rep.  258;  Koch  v. 
Merk,  48  111.  App.  26;  City  of  Lincoln  v.  Becivman,  23  Neb.  677;  37  N.  W. 
Rep.  593;  Blaechinska  v.  Howard  M.  &  H.,  59  Hun,  322;  Wallace  r. 
Western  W.  C.  R.  Co.,  104  N.  C.  442;  10  S.  E.  Rep.  552;  Drummond  v. 
Crane,  159  Mass.  577;  35  N.  E.  Rep.  90;  Moorman  v.  Seattle  &  M.  Ry. 
Co.,  8  Wash.  88;  35  Pac.  Rep.  596. 

A  party  recovering  for  breach  of  a  contract  is  entitled  to  the  profits 
which  he  would  have  realized  therefrom.  —  Hitchcock  v,  Galveston,  3 
Woods,  287;  Wisner  v.  Barber,  10  Ore.  342;  Hawley  v.  Corey,  9  Utah, 
175;  33  Pac.  Rep.  695;  Lydecker  v.  Valentine,  71  Hun,  194;  24  N.  Y.  S. 
Rep.  567;  Dykema  v.  Minneapolis,  etc.,  Ry.  Co.,  101  Mich.  47;  59 
N.  W.  Rep.  447;  Roberts  v.  Drehmer,  41  Neb.  306;  59  N.  W.  Rep.  911; 
Corbett  v.  Anderson,  85  Wis.  218;  54  N.  W.  Rep.  727;  Dickinson  v.  Hart, 
66  Hun,  631;  21  N.  Y.  S.  Rep.  307;  City  of  Sherman  t?.  Connor  (Texas), 
29  S.  W.  Rep.  1053. 

And  one  who,  without  fault  on  his  part,  has  been  prevented  by  the 
other  party  to  the  contract  from  performing  labor  under  it,  may  recover 
damages  based  upon  his  prospective  profits  where  they  can  be  proven.  — 
United  States  r.  Behan,  110  U.  S.  338;  Mueller  v.  Bethseda  Min.  Spring 
Co.,  88  Mich.  390;  50  N.  W.  Rep.  319;  Dr.  Harter  Medicine  Co,  v.  Hop- 
kins, 83  Wis.  309;  53  N.  W.  Rep.  501;  Boston  v.  Henderson,  92  Mich. 
606;  52  N.  W.  Rep.  1020;  Ramsey  v.  Holmes,  etc,  Co.,  85  Wis.  174;  55 
N.  W.  Rep.  391 ;  Huse  &  Loomis  Ice  Co.  v.  Heinze,  102  Mo.  245;  14  S.  W. 
Rep.  756;  Allphin  r.  Working,  32  111.  App.  178,  affirmed  in  ^4  N.  E.  Rep. 
54;  Lynch  v.  Sellers,  41  La.  Ann.  375;  6  So.  Rep.  561;  Cameron  v.  White, 
74  Wis.  425;  43  N.  W.  Rep.  155;  Williams  v.  Island  City,  M.  &  M.  Co., 
25  Ore.  573;  37  Pac.  Rep.  49;  Lee  v.  Briggs,  99  Mich.  487;  58  N.  W- 
Rep.  477;  Farr  v.  Griffith,  9  Utah,  416;  35  Pac.  Rep.  505;  Bonifay  v. 
Hassell,  100  Ala.  269;  14  So.  Rep.  46;  Fountaine  v.  Baxley,  90  Ga.  416; 
17  S.  E.  Rep.  1015;  Atkinson  v.  Morse,  63  Mich.  276;  29  N.  W.  Rep.  711. 

But  anticipated  profits,  dependent  on  future  contingencies,  cannot  be 
included  in  the  damages. —  Bergen  v.  New  Orleans,  35  La.  Ann.  623; 
O'Conner  v.  New  York  &.  Y.  L.  I.  Co.,  28  N.  Y.  S.  Rep.  544;  8  Mis.  Rep. 
243;  Tennessee  &  C.  R.  R.  Co.  v.  Danforth,  99  Ala.  331;  13  So. 
Rep.  51;  Cahn  i'.  W.  U.  Tel.  Co.,  46  Fed.  Rep.  40;  Montgomery 
Co.  Union  Agr.  Soc.  v.  Harwood,  126  Ind.  440;  26  N.  E.  Rep. 
182;  Gunter  v.  Beard,  93  Ala.  227;  9  So.  Rep.  389;  Bean  t?.  Carleton, 
68  Hun,  611;  12  N.  Y.  S.  Rep.  519;  Kenny  v.  Collier,  79  Qa.  743;  8S.  E. 


DAMACiKS  TELEGlUril    COMI'ANY.  593 

Degli-  [472]  gently  omitted  to  send  it,  and  ko  cniiscd 
great  loss  to  tiie  plaintiffs,  it  was  held  that  they  could 
only  recover  nominal  damages,  because  the  defendant 
could  not  have  conlemplati-d  any  loss  as  he  did  not 
know  what  the  telegram  was  about  (r);  and  where 
rags  were  sent  by  railway  in  a  damp  condition  without 
any    notice    to    the    company    of    the   fact,    and    it  was 

(r)  Sanders  v.  Stuart,  45  L.  J.  C.  P.  682;  [see  in/ra]. 

Rep.  58;  Stone  v.  Rosenheim,  67  Mil.  503;  10  Atl.  Rep.  221,  307;  Bern- 
stein V.  Meech,  130  N.  Y.  354;  29  N.  E.  Rep.  255;  Texas  Mex.  Ry.  Co.  v. 
Douglass,  73  Tex.  325;  11  S.  W.  Rep.  333;  Browu  v.  Sullivan,  71  Tex. 
470;   10  S.  W.  Rep.  288. 

(r)  Tins  is  also  the  rule  In  thl.s  country.— Baldwin  v.  U.  S.  Tel.  Co., 
45  N.  Y.  744;  Mackay  v.  W.  U.  Tel.  Co.,  Ifi  Nev.  222;  Caudee  r.  W.  U. 
Tel.  Co.,  34  Wis.  471;  White  r.  W.  U.  Tel.  Co.,  \ih\d.  Rep.  710;  U.S. 
Tel.  Co.  r.  Gildersleeve,  29  Md.  233;  Hughes  v.  W.  U.  Tel.  Co.,  114  N. 
C.  70;  19  S.  E.  Rep.  100;  W.  U.  Tel.  Co.  ».  Wilson,  32  Flu.  527;  14  So. 
Rep.  1,  overruling  Western  Union  Tel.  Co.  v.  Ilyer,  22  FJa.  C37;  1  So. 
Rep.  129;  American  Union  Tel.  Co.  v.  Fatman,  73  Ga.  285;  64  Am.  Rep. 
877.     See  article  by  Seymour  D.  Thompson,  33  C.  L.  J.  147. 

A  message,  •'  Will  you  sive  one  fifty  for  twenty-five  hundred  at  Lon- 
don? Answer  at  once  as  I  have  only  till  niiiht,"  was  held  not  obscure  or 
In  cypher  so  as  to  exempt  the  company  from  liability  for  "errors  in 
cypher  or  obscure  messages."  —  Telegraph  Co.  v.  Grlswold,  37  Ohio  St. 
801. 

In  Hart  r.  Western  Union  Telegraph  Co.  (66  Cal.  679;  24  Am.  Law 
Reg.  320),  the  plaintiff  delivered  to  the  defendant  the  message  "Buy 
bail  barley  falun;  report  by  mall."  The  message  was  delivered  as 
written,  except  that  the  word  "ball  "  was  changed  to  the  word  "bain." 
By  the  private  cypher  code  of  the  receiver  used  by  the  plaintiff  In  the 
message,  the  word  "bail"  meant  "one  hundred  tons,"  and  the  word 
"bain,"    two   hundred   and    twenty-flve   tons.     The    word  "bail"    as 

transmitted    along    the    wire  was   Indicated    by  the   following: 

,   and  the  word  "bain:" — . 

Acting  on  the  message  received,  the  receiver  bought  for  plalntiflf 
two  hundred  tons  of  barley.  When  the  plaintiff  discovered  the  fact 
he  notified  the  defendant  that  one  hundred  tons  had  been  bought  in 
excess  of  that  directed  to  be  bought  by  the  original  message,  and  asked 
the  defendant  what  he  should  do  with  the  surplus  so  purchased.  Defend- 
ant refused  to  give  any  instruction  in  reg:ird  to  it.  Plaintiff  thereupon 
sold  the  barley  at  the  highest  market  rate,  his  loss  on  the  extra  one  hun- 
dred tons  being  $429.82,  for  which  the  action  was  brought.     There  was  a 


594  DAMAGES. 

proved  that  if  delivered  in  their  ordinary  dry  [473]  con- 
dition  no   harm   would   have  happened,  it  was  held  that 

condition  printed  on  the  blank  upon  which  the  message  was  sent  exempt- 
ing the  company  from  liability  for  mistakes  or  delays,  etc.,  unless  the 
message  was  repeated,  and  for  this  an  additional  charge  was  made.  It 
was  held  in  the  first  place  that  the  condition  was  void.  But  there  being 
evidence  that  the  error  resulting  in  the  change  of  the  word  "bail,"  to 
•'  bain,"  was  caused  by  a  break  in  the  electric  current  produced  by 
atmospheric  influences  beyond  defendant's  control,  the  court  said  this 
was  the  turning  question  in  the  case,  and  remanded  it  for  a  new  trial 
because  it  was  not  fairly  submitted  to  the  jury  in  the  court  below. 

Subsequently  the  court  overruled  the  first  point,  and  held  that  the 
regulation  with  reference  to  the  repeating  of  messages  was  reasonable  and 
valid. —  Same  case,  24  Am.  Law  Reg.  604. 

That  a  telegraph  company  will  not  be  liable  for  the  correct  transmis- 
sion of  a  message  beyond  the  amount  received  therefor  unless  repeated 
at  an  additional  expense  is  held  a  reasonable  regulation. —  See  Becker  v. 
W.  U.  Tel.  Co.,  11  Neb.  87,  and  cases  cited  in  45  Am.  Rep.  488;  Western 
Union  Tel.  Co.  v.  Fenton,  52  Ind.  1;  Young  v.  Tel.  Co.,  65  N.  Y.  163; 
Lassiter  v.  Tel.  Co.,  89  N.  C.  334;  Camp  v.  W.  U.  Tel.  Co.,  1  Mete.  (Ky.) 
164;  Bartlett  v.  Telegraph  Co.,  62  Me.  209;  Redpath  v.  Tel.  Co.,  112 
Mass.  71;  Bresse  v.  U.  S.  Tel.  Co.  31  How.  87;  8  Am.  Rep.  526;  Pass- 
more  V.  Western  Union  Tel.  Co.,  78  Pa.  St.  238;  Ellis  v.  American  Tel. 
Co.,  13  Allen,  235;  U.  S.  Tel.  Co.  v.  Gildersleeve,  29  Md.  232;  9  Am. 
Rep.  149;  Waun  v.  West.  Union,  etc.,  Tel.  Co.,  37  Mo.  472.  See  also 
Clement  v.  W.  U.  Tel.  Co.,  S.  J.  C.  Mass.,  24  Am.  Law  Reg.  328. 

A  regulation  that  the  company  shall  not  be  liable  in  damages  unless 
the  claim  therefor  is  presented  within  sixty  days  has  been  held  reason- 
able.—Wolf  V.  W.  U.,  Tel.  Co.  62  Pa.  St.  83;  Young  v.  W.  U.  Tel.  Co., 
65  N.  Y.  163. 

A  telegraph  company  cannot  by  contract  relieve  themselves  from  lia- 
bility for  negligence.— Tel.  Co.  v.  Griswold,  37  Ohio  St.  301 ;  Tyler  v.  W. 
U.  Tel.  Co.,  60  111.  421;  True  v.  Int.  S.  Co.,  60  Me.  9;  W.  U.  Tel.  Co,  v. 
Blanchard,  68  Ga.  299. 

The  negligence  must  be  the  proximate  cause  of  the  loss.  —  A 
telegraph  company  neglected  to  deliver  a  message  sent  appellant  by  his 
broker  informing  him  of  the  purchase  of  stock  on  his  account.  The  market 
declining  heavily,  and  the  broker  hearing  nothing  from  appellant  sold 
out  the  stock  at  a  great  loss.  Appellant  claimed  that  if  the  message 
had  been  delivered  he  should  have  remitted  a  margin  sufficient  to  pre- 
vent the  stock  being  sacrificed  or  have  directed  a  sale  at  the  first  point  of 
decline  and  sued  the  company  for  the  loss  of  the  sale.  It  was  held  that 
the  negligence  of  the  company  was  as  to  appellant's  loss  a  causa  remotator 
which  he  could  not  recover;  that  the  question  as  to  what  he  would  or 
might  have  done  had  the  telegram  been  delivered  was  not  a  question  of 


DAMAGES  —  PERSONAL    INJURIES.  595 

the  company  were  not  liable  as  the  damage  was  not  a 
[4^4]  natural  consequence  of  the  delay  in  contemplation 
of  the  parties  at  the  ti«mo  of  makin<]j  the  contract  (.s). 

With  respect  to  damages  for  personal  injuries,  the  meas- 
ure is  loss  of  time,  expense  incurred,  pain  and  suffer- 
ing (0»  and  permanent  injury  causing  pecuniary  loss,  as  to 

(»)  Baldwin  v.  L.  C.  &  D.  lly.  Co.,  9  Q-  cases  under  Lord  Campbell's  Act.    See 

B.  D.  582.  the   case,  supra.    For   damages   under 

(O  Blake  f.  Midland   ily.  Co.,  18  Q.  B.  that  Act,  sec  Ch.  VII. 
93,  at  p.  Ill,  but  tills  does  not  apply  to 

fact,  and  the  flndlng  of  the  jury  upon  it  was  not  conclusive. —  Smith  o. 
W.  U.  Tel.  Co.  (Ky.  Ct.  App.),  Chicago  Leg.  News,  Aug.  1,  1885. 

In  Pennington  v.  W.  U;  Tel.  Co.  (G7  la.  G31 ;  24  N.  W.  Rep.  46;  25  Id. 
838),  plaintiff's  agent  telegraphed  him  an  offer  to  buy  apples  at  two 
dollars  per  barrel,  but  by  the  negligence  of  the  agents  of  the  telegraph 
company  the  telegram  was  not  properly  copied  and  the  plaintiff  took  no 
notice  of  it,  and  afterwards  the  price  of  apples  advanced  and  in  purcliasin. 
he  was  obliged  to  pay  the  advanced  price.  It  was  held  in  an  action  against 
the  company  for  his  loss  that  he  could  only  recover  the  amount  paid  for  the 
telegram. 

(t)  Personal  Injuries. —  In  cases  of  personal  Injuries,  a  recovery  may 
be  had  for  the  expenses  incurred  in  effecting  a  cure. —  Peoria  Bridge 
Ass.  V.  Loomis,  20  111.  235;  Memphis,  etc.,  II.  Co.  v.  Whitefleld,  4  4  Miss. 
466;  Oliver  v.  North  Pac.  Tr.  Co.,  3  Ore.  84;  Goodno  v.  Oshkosh,  28 
Wis.  300;  Morris  v.  Chicago,  etc.,  R.  Co.,  45  la.  29;  Sheehan  v.  Edgar, 
68N.  Y.  631;  Chicago  w.  Langlass,  GG  111.  3G1 ;  Hart  v.  Charlotte,  C.  & 
A.  R.  Co.,  33  S.  C.  427;  12  S.  E.  Rep.  9;  Consolidated  Coal  Co.  v. 
Ha?nni,  146  111.  G14;  35  N.  E.  Rep.  IG2;  City  of  Friend  ».  IngersoU,  39 
Neb.  717;  58  N.  W.  Rep.  281. 

Loss  of  time. —  Indianapolis  v.  Gaston,  58  Ind.  225;  Wader.  Leroy, 
20  How.  34;  Chicago  v.  O'Brennan,  G5  111.  160;  Beardsley  v.  Swann,  4 
McLean,  333;  Walker  u.  Erie  R.  Co.,  63  Barb.  260;  Peoria,  etc..  Canal 
Co.  V.  Graham,  63  Pa.  St.  290;  Masterton  v.  Mount  Vernon,  58  N.  Y. 
391;  Morris  v.  Chicago,  etc.,  R.  Co.,  45  la.  29;  Rlepon  v.  Biltel,  20  Wis. 
614;  Campbell  v.  Wing,  5  Tex.  Civ.  App.  431;  24  S.  W.  Rep.  360;  Car- 
penter r.  Mexican  Nat.  R.  Co.,  39  Fed.  Rep.  31."»;  Brldger  v.  Ashev^lle 
&S.  R.  Co.,  27  S.  C.  456;  3  S.  E.  Rep.  860;  City  of  Greensborough  v. 
McGibljony,  93  Ga.  672;  20  S.  E.  Rep.  37. 

Impaired  capacity  to  labor. —  George  v.  Haverhill,  110  Mas.o.  506; 
Hammond  u.  Mukwa,  40  Wis.  36;  Indianapolis  v.  Gaston,  58  Ind.  225; 
McLaughlin  v.  Corry,  77  Pa.  St.  109;  Collins  v.  Council  Bluffs,  32  la.  325; 
Houston,  etc.,  R.  Co.  v.  Boehm,  57  Tex.  152;  Georgia  Southern  R.  Co.  v. 
Neel,  68  Ga.  609;  Blackman  v.  Gardiner  Bridge,  75  Me.  214;  Saldana  v. 

S8 


596  DAMAGES. 

which,  it  is  said,  that  the  amount  awarded  must  not  be  an 
equivalent  for  the  loss  but  some  reasonable  sum  (u). 

(u)  Armsworth  v.  8.  E.  Ry.  Co.,  11  Jnr.  758;  see  Phillips  t>.  L.  &  8,  W.  Ry.  Co., 
supra. 

Galveston,  etc.,  Ry.  Co.,  43  Fed.  Rep.  862;  Davidson  v.  Southern  Pac. 
Co.,  44  Fed.  Rep.  476;  Campbell  v.  Fisher  (Tex.  Civ.  App.),  24  S.  W. 
Rep.  661;  Gulf,  W.  T.  &  P.  Ry.  Co.  v.  Abbott  (Tex.  Civ.  App.),  24  S.  W. 
Rep.  299;  Fordyce  v.  Withers,  1  Tex.  Civ.  App.  540;  20  S.  W.  Rep.  766; 
Seaboard  Mfg.  Co.  v.  Woodson,  98  Ala.  378;  11  So.  Rep.  733;  Fisher«r. 
Jansen,  128  111.  649;  21  N.  E.  Rep.  598;  Ward  v.  Blackwood,  48  Ark. 
396;  3S.  W.  Rep.  624. 

For  physical.— Ranson  v.  New  York  &  Erie  R.  Co.,  15  N.  Y.  416; 
Indianapolis  w.  Gaston,  68  Ind.  225;  Goodno  v.  Oshkosh,  28  Wis.  300; 
Curtis  V.  Rochester,  etc.,  R.  Co.,  20  Barb.  282;  Peoria  Bridge  Ass.  w. 
Loomis,  20  111.  235;  Chicago  v.  Elzeman,  71  111.  131;  Pittsburg,  etc.,  R. 
Co.  V.  Donahue,  70  Pa.  St.  119;  Mason  v.  Ellsworth,  32  Me.  271;  Rowell 
V.  Williams,  29  la.  217;  Louisville  &  N.  R.  Co.  v.  Binion  (Alabama),  18 
So.  Rep.  75;  City  of  Birmingham  v.  Lewis  (Alabama),  9  So.  Rep.  243; 
Ridenhour  v.  Kansas  City  Cable  Ry.  Co.,  102  Mo.  270;  13  S.  W.  Rep.  889; 
14  S.  W.  Rep.  760;  Dirmeyer  v.  O'Heon,  39  La.  Ann.  961;  3  So.  Rep. 
132;  Kennon  v.  Gilmer,  131  U.  S.  22;  9  S.  Ct.  Rep.  696;  Town  of  Nap- 
panee  v.  Ruckman,  7  Ind.  App.  361;  34  N.  E.  Rep.  609;  Churchman  w. 
Kansas  City,  44  Mo.  App.  665;  Chicago  &  A.  R.  Co.  v.  Fisher,  38  111.  App. 
33;  Wabash  W.  Ry.  Co.  v.  Morgan,  132  Ind.  430;  31  N.  E.  Rep.  661;  32 
N.  E.  Rep.  85. 

And  mental  suffering. — Scott  v.  Montgomery,  95  Pa.  St.  444;  Stewart 
V.  Ripon,  38  Wis.  587;  Masters  v.  Warren,  27  Conn.  293;  Memphis,  etc., 
R.  Co.  V.  Whitefield,  44  Miss.  466;  Penn.,  etc.,  Canal  Co.  v.  Graham,  63 
Pa.  St.  290;  Seger  v.  Barkhamsted,  22  Conn.  290;  Cooper  u.  Mullins,  30 
Ga.  152;  Cannings.  Williamstown,  1  Cush.  451;  South,  etc.,  Ala. R.  Co. 
V.  McLendon,  63  Ala.  266;  Porter  v.  Hannibal,  etc.,  R.  Co.,  71  Mo.  66;  36 
Am.  Rep.  454;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Midgett  (Kan.  App.),  40 
Pac.  Rep.  995;  City  of  Cliicago  v.  McLean,  35  111.  App.  273,  affirmed  in 
24  N.  E.  Rep.  527;  Hannibal  &  St.  J.  R.  Co.  v.  Martin,  111  111.  219; 
American  Waterworks  Co.  v.  Dougherty,  37  Neb.  373;  65  N.  W.  Rep. 
1051;  San  Antonio  &  A.  P.  Ry.  Co.  v.  Corley  (Tex.  Civ.  App.),  26  S.  W. 
Rep.  903;  Schmitz  v.  St.  Louis,  etc.,  Ry.  Co.,  119  Mo.  266;  24  S.  W.  Rep' 
472;  Townsend  v.  Briggs,  99  Cal.  481;  32  Pac.  Rep.  307;  Gallagher  v. 
Bowie,  G6  Tex.  265;  17  S.  W.  Rep.  407. 

And  for  future  pain.— Fry  v.  Dubuque,  etc.,  R.  Co.,  45  la.  416;  Aaron 
V.  Secon(;^  Av.  R.  Co.,  2  Daly,  127;  South,  etc.,  Ala.  R.  Co.  v.  McLendon, 
63  Ala.  2G6;  Sidekum  v.  Wabash,  etc.,  Ry.  Co.,  93  Mo.  400;  4  S.  W.  Rep. 
701;  Weiler  v.  Manhattan  Ry.  Co.,  53  Hun,  372;  6  N.  Y.  S.  Rep.  320; 
Meddles  v.  Chicago  &  N.  W.  Ry.  Co.,  77  Wis.  228;  46  N.  W.  Rep.  116; 


l)\.M.\(.i:s  — PEKSONAL    INHKIKS.  597 

It  is  said  that  where  it  is  impossible  to  estimate  accur- 
ntoly  the  amount  of  damage  done  the  defendant  must  suf- 
fer (v). 

(r)  I^oils  V.  Amherst,  20  Beav.  230.—  8.  F.  Ry.  Co.  v.  Trott,  HG  Tex.  412;  25  8. 

riius,  uctufil    (liiinagcs    cannot  bo  ro-  W.  Uep.  49;  25  S.  W.  Uep.  431 ;  Wilcox  w. 

overud  for  mental  suffering  caused  by  Richmond  &  D.  R.  Co.,  52  Fed.  Rep.  2i>4  ; 

jicrll  or    fright.  If    unaccompanied    by  8  C.  C.  A.  73;  8  U.  .S.  App.  118;  Yoakum 

physical  injury.— Atchison,  T.  <&  S.  F.  v.  Dunn,  1  Tex.  Civ.  App.  624;  21  S.  W. 

n.  Co.  r.  McGlnnls,  1<;  Kan.  1(19;  2<i  Pac.  Rep.  411 ;  Chicago,  R.   I.   AT.  Ry.  Co.   r. 

Rep.  4.^3;  Siimnierlloia  v.  W.  U.  Tel.  Co.,  Uitt  (Tex.  Civ.  App.),  31  S.  W.  Rep.  1084.] 
»7  Wis.  1;  57  N.  W.  Rep.  973;  Gulf,  C.  & 

Ball  V.  Mabry,  91  Ga.  781;  18  S.  E.  Rep.  04;  Johnson  v.  Northern  Pac. 
K.  Co.,  47  Minn.  430;  50  N.  W.  Rep.  473;  Propsom  v.  Leathern,  80  Wis. 
COS;  50  N.  W.  Rep.  58G.  But  the  injury  mu.st  be  permanent  (Gorhara 
-p.  Kansas  City  &  S.  Ry.  Co.,  113  Mo.  408;  20  S.  W.  Rep.  1000),  and  the 
sufifering  certain  to  follow. —  Ross  u.  Kansas  City,  48  Mo.  App.  440; 
NVashington  &  G.  R.  Co.  v.  Tobriner,  147  U.  S.  571  ;  13  R.  Ct.  Rep.  557; 
Union  Pac.  Ry.  Co.  v.  Jones,  49  Fed.  Rep.  343;  4  U.  S.  App.  115;  1  C.  C. 
A.  282. 

And  in  some  cases  it  has  been  held  that  a  recovery  may  be  had  for  the 
fright  caused  by  the  peril  or  danger  incurred. —  Cooper  v.  MulMns,  30  Ga. 
152;  Masters  v.  Warren,  27  Conn.  293;  Oliver  r.  LaValle,  3(;  Wis.  19S; 
Sherwood  v.  Chicago  &  W.  M.  Ry.  Co.,  82  Mich.  374;  4G  N.  W.  Rep.  773; 
Stutz  V.  Chicago  &  N.  W.  Ry.  Co.,  73  Wis.  147;  40  N.  W.  Rep.  G53. 

In  an  action  against  a  physician  for  an  injury  to  a  wife  in  deliver- 
ing her  of  a  child,  it  was  held  damages  might  be  given  for  loss  of  time 
necessary  to  eflfect  a  cure,  the  expenses  of  employing  another  physician, 
and  also  the  mental  suffering  of  the  wife  produced  by  the  destruction  of 
the  child.—  Smith  v.  Overby,  30  Ga.  241. 

But  in  Bovee  v.  Danville  (53  Vt.  183),  a  suit  for  the  recovery  of  dam- 
ages for  injuries  sustained  by  reason  of  a  defective  highway  resulting  in 
a  miscarriage  and  loss  of  twins,  a  charge  of  the  court  **  if  this  mis- 
carriage was  brought  about  by  this  Injury,  any  suffering  occasioned 
thereby  in  injury  to  her  feelings  should  be  compensated,"  was  held 
error  as  likely  to  mislead  the  jury.  See  Augusta  &  S.  R.  Co.  v.  Randall, 
85  Ga.  297;   11  S.  E.  Rep.  706. 

In  an  action  for  breach  of  contract  damages  for  wounded  feelings 
or  mental  anxiety  where  there  is  no  physical  injury  are  not  generally 
alloired.— Trigge  v.  St.  Louis,  etc.,  R.  Co.,  74  Mo.  147;  41  Am.  Rep.  ?,or,. 

In  a  late  case,  Blankeny  v.  W.  U.  Tel.  Co.,  S.  C.  Ind.  (22  C.  L.  J.  147), 
where  damages  were  claimed  against  the  defendant  company  for  failure 
to  deliver  message  whereby  he  missed  an  opportunity  of  attending  his 
brother's  funeral,  the  court  say:  — 

**  No  case  can  be  found  where  a  person  has  been  allowed  to  recover 
iamages  for  a  shock,  injury  or  outrage  to  the  feelings,  unaccompanied 


598  DAMAGES. 

If  some  damage  must  have  happened  to  the  plaintiff, 
irrespective  of  the  defendant's  act,  that  must  be  deducted 

by  an  injury  to  the  person.  A  different  doctrine  would  lead  to  absurd 
and  curious  litigation.  Take  for  example  a  railroad  collision ;  it  is  proper 
that  every  passenger  on  the  train  who  is  personally  injured  should  re- 
cover for  the  negligence,  but  shall  every  one  who  was  frightened  by  the 
collision,  maintain  an  action  against  the  company?  " 

And  in  (The  Gulf  C.  &  Santa  Fe  Ey.  Co.  v.  Levy,  59  Tex.  563)  a  similar 
case,  the  court  say:  "  The  English  cases  hold  substantially  that  a  person 
to  whom  a  message  is  sent  cannot  maintain  an  action,  notwithstandinjr 
pecuniary  injury  may  result  to  him  by  the  failure  ol  a  telegraph  company 
correctly  or  within  a  reasonable  time  to  transmit  it  unless  the  sender  sus- 
tains to  the  person  to  whom  the  message  is  sent  the  relation  of  agent 
through  which  privity  of  contract  is  established.  —  Clayford  v.  U.  K. 
Electric  Tel.  Co.,  i  Q.  B.  706.  This  doctrine  has  not  been  accepted  by  the 
courts  of  this  country,  but  none  of  them  have  gone  to  the  extent  of  hold- 
ing that  a  person  to  whom  a  message  is  sent  may  maintain  an  action  for 
the  negligence  of  the  telegraph  company  without  averment  and  proof  of 
some  actual  pecuniary  injury  sustained  thereby."  (This  case  overruled 
Eelle  V.  W.  U.  Tel.  Co.,  55  Tex.  310,  so  far  as  it  held  that  an  action  for 
mental  suffering  alone  could  be  maintained.) 

Evidence.  —  In  such  cases  evidence  of  the  wealth  of  the  defendant  or 
poverty  of  the  plaintiff  is  not  generally  admissible  in  aggravation  of  dam- 
ages.—  Moody  V.  Osgood,  50  Barb.  628;  Pittsburgh,  etc.,  R.  Co.  v. 
Powers,  74  111.  341;  Barbour  County  v.  Horn,  48  Ala.  566;  Macon,  etc., 
R.  Co.  V.  Winn,  26  Ga.  259;  Missouri  Pac.  R.  Co.  v.  Lyde,  57  Tex.  505; 
Griffith  V.  Utica  &  M.  R.  Co.,  63  Hun,  626;  17  N.  Y.  S.  Rep.  692;  Beckt). 
Dowell,  40  Mo.  App.  71;  Clark  v.  Fairley,  30  Mo.  App.  335. 

But  plaintiff  may  show  the  amount  of  his  earnings  prior  to  the  acci- 
dent.— Ehrgott  V.  New  York,  96  N.  Y.  264;  Nash  v.  Sharpe,  19  Hun,  365; 
Hanover  R.  Co.  v.  Coyle,  55  Pa.  St.  396;  St.  Louis  S.  W.  Ry.  Co.  v.  Dob- 
bins, 60  Ark.  481;  30  S.  W.  Rep.  887;  Sias  ».  Village  of  Reed  City 
(Michigan),  61  N.  W.  Rep.  502;  Alabama  G.  S.  R.  Co.  v.  Frazier,  93  Ala. 
45;  9  So.  Rep.  303;  Palmer  v.  Conant,  58  Hun,  333;  11  N.  Y.  S.  Rep.  917; 
Coots  V.  District  of  Columbia,  7  Mackey,  277;  Griveaud  v.  St.  Louis  C. 
&  W.  Ry.  Co.,  33  Mo.  App.  458;  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Frawley, 
110  Ind.  18;  9  N.  E.  Rep.  594;  Gardner  v.  Detroit  St.  Ry.  Co.,  99  Mich. 
182;  58  N.  W.  Rep.  49;  Miller  v.  Manhattan  Ry.  Co.,  73  Hun,  512;  26 N. 
Y.  S.  Rep.  162. 

And  in  an  action  to  recover  for  permanent  personal  injuries  evidence 
of  the  plaintiff's  qualifications,  income  and  habits  is  admissible  to  show 
his  prospective  earnings  or  savings.  —  Simonson  v.  Chicago,  etc.,  R.  Co., 
49  la.  87. 

A  parent,  guardian  or  master  may  recover  damages  for  loss  of  services 
of  the  child,  ward  or  servant,  and  the    expenses  incurred  in  cnriog 


DAMAGES PERSONAL    IKJUKIES.  599 

from  tho  whole  amount  of  thimage  done,  for  the  defendant 
is  only  liable  for  tho  consequences  of  his  own  act  (.c). 

The  defendant  cannot,  as  wo  have  seen,  escape  liability 
bv  showing  that  the  same  damage  would  have  happened 
without  his  act,  if  it  is,  in  fact,  his  act  which  had  done  the 
damage  ;  but  if  he  can  show  that  some  of  the  damage  which 
has  hapi)eued  was  not  done  by  hini  but  entirely  by  some- 
[475]  thing  or  somebody  else  beyond  his  control,  the 
damages  may  be  apportioned  {y)  —  that  is  to  say,  that  the 
defendant  is  liable  for  tiie  consequences  of  his  own  acts. 

[47G]  In  Smith  v.  D()i)son  {z)  the  plaintift"'s  barge,  too 
heavily    laden,  was  flooded  first  by  a  steamer  called    tho 

(t)  Workman  v.  Great  Northern  Ry.  City  of  Jackson,  92  Mich.  197;  52   K.  W. 

Co..  32  L.  J.  Q.  B.  279.—  [Sec  Shotwcll  v.  Rep    107.5.  | 

Dodge,  8  Wash.  3157;   36   Pac.  Uep.  254;  {y)  NUro-phosphato  Co.   v.   London 

A.  J.  Anderson  Electric  Co.  v.  Cleburne  and  St.  Katherine  Docks,  T...  R. '.»  Ch.  D. 

W.  1.  &  L.  Co.    (Tex.    Civ.   App),  27  S.  603;  see  also  Smith  r.  Dobdon,  3  M.  &  G. 

W.    Rep.    504.      As    predisposition    to  59;  Raisin  v.  Mitchell,  9  C.  &  i'.  613. 
disease.— Woodard  r.  City  of  iJoscobel,  {z)  Hupra. 

&4  Wla.  220;  51  N.  W.  Rep.  332;  Fuller  v. 

them.  — Shearman  &  Redfleld,  §  COS;  Oakland  R.  Co.  v.  Pleldins,  48  Pa. 
8t.  323;  Karr  v.  Parks,  44  Cal.  46. 

The  husband  for  loss  of  services  of  his  wife  and  expenses  incurred  in 
effecting  a  cure.  —  Sanford  v.  Augusta,  32  Me.  o3G;  Chicago  v.  Hoy,  75 
111.  531;  Holmes  v.  Fon  du  Lac,  42  Wis.  284;  Metropolitan  St.  K.  Co.  v. 
Johnson,  91  Ga.  4G6;  18  S.  E.  Rep.  810;  St.  Louis  S.  W.  Ry.  Co.  v.  Hen- 
eon,  58  Fed.  Rep.  531;  7  C.  C.  A.  349;  Hazard  Powder  Co.  v.  Volger,  68 
Fed.  Rep.  152;  7  C.  C.  A.  130;  Hawkins  v.  Front  St.  Cable  Ry.  Co.,  3 
Wash.  St.  592;  28  Pac.  Rep.  1021;  Henry  v.  Klopfer,  147  Pa.  St.  178;  23 
Atl.  Rep.  338;  29  W.  N  C.  331 ;  Readdy  v.  Borough  of  Shannon,  137  Pa. 
St.  98;  20  Atl.  Rep.  39G. 

The  parent  can  recover  nothing  on  account  of  the  child's  sufferings.  — 
Oakland  u.  Fielding,  48  Pa.  St.  323;  Stewart  v.  Ripon,  38  Wis.  684. 

Nor  can  the  husband  on  account  of  the  wife's.  —  Hyatt  v.  Aiiams,  IG 
Mich.  180;  Ruder  v.  Purdy,  41  111.  279;  contra,  Gulf,  C.  &..  S.  F.  Ry.  Co. 
t.  Glenk  (Tex.  Civ.  A|)p.),  30  S.  W.  Rep.  278;  Campbell  i>.  Harris,  4 
Tex.  Civ.  App.  G3G;  23  S.  W.  Rep.  35;  Gulf ,  C.  &  S.  F.  Ry.  Co.  w.  Box,  81 
Tex.  C70;   17  S.  W.  Rep.  375. 

He  can  not  recover  for  mental  distress  on  account  of  her  sufferings.  — 
Hyatt  17.  Adams,  16  Mich.  180.  See  Keyes  ».  Minneapolis  &  St.  L.  Ry. 
Co.,  3G  Minn.  290;  30  N.  W.  Rep,  888. 

Nor  can  the  parent  in  consequence  of  the  child's  sufferings.  — 3  Sutba 
erland  on  Damages,  p.  725. 


600  DAMAGES. 

Kamona,  [477]  and  then  by  the  defendants',  the  Water 
Lily.  The  whole  damage  caused  by  the  two  steamers  was 
£80.  The  jury  found  a  verdict  for  £20,  reducing  the  amount 
partly  because  of  the  plaintiff's  negligence,  and  partly  be- 
cause of  the  Ramona's  negligence.  The  Court  upheld  the 
verdict  on  application  by  the  defendants  to  set  it  aside,  and 
said  the  jury  might  be  justified  in  reducing  the  damages.  It 
does  not  appear  what  would  have  been  the  view  of  the 
Court  if  the  plaintiff  had  moved  for  a  new  trial  in  order  to 
increase  the  damages.  It  is  pointed  out  in  a  note  that  the 
loss  would  not  have  happened  from  the  swell  cansed  by  the 
Ramona  alone,  and,  therefore,  that  vessel  was  not  liable  at 
all ;  and  that  the  jury  having  found  that  the  Water  Lily 
was  only  liable  for  part  of  the  damage,  as  the  swell  of  the 
Ramona  had  helped  to  swamp  the  barge,  the  result  was 
that  the  plaintiff  could  not  recover  an  adequate  indemnity 
for  his  loss.  In  the  course  of  the  argument  in  Thorogood  v. 
[478]  Bryan  (a),Cresswell,  J.,askedif  twoomnibuses  were 
racing,  and  one  of  them  ran  over  a  mar  who  was  crossing  a 
road,  would  he  not  have  a  remedy  against  either?  It  seems 
that  the  answer  to  that  question  might  depend  upon  the  cir- 
cumstances. If  the  man  would  have  escaped  one  omnibus 
and  been  uninjured,  but  tlj^  other  omnibus  ran  over  him  as 
be  was  escaping  from  the  first,  then,  I  think  it  is  clear  that 
either  should  be  liable  for  the  whole  damage  ;  for  if  the  fir.-t 
had  not  made  the  man  run  the  other  would  not  have  knocked 
him  down,  and  if  the  other  had  not  been  racing  the  man 
would  have  escaped.  But,  I  think,  if  the  first  omnibus  ran 
over  the  man,  and  the  only  way  in  which  the  act  of  the 
second  contributed  to  the  ai^ident  was  by  encouraging  the 
other  to  race,  it  might  be  contended  that  this  is  too  remotely 
connected  with  the  injury.  But,  upon  the  other  hand,  if 
two  persons  agree  together  to  do  an  act,  the  natural  conse- 
quence of  which  may  be  to  injure  others,  each  would  appear 

(a)  Thorogood  v.  Bryan,  8  C.  B.  121. 


DAMAGES I'EUSONAL    IN.)  I  lUKS,  (lUl 

upon  principle  to  bo  respousible  for  the  acts  of  the  other, 
which  uro  done  iu  carrying  out  the  coininou  design.  Of 
course,  if  two  men  agree  to  commit  a  tort  intentionally,  as 
if  two  omnibus  drivers  agreed  to  run  over  a  parti(Hdar  man, 
that  would  bo  a  conspiracy,  but  being  an  intentional  act 
would  not  bo  negligence  (6). 

Upon  the  principle  that  the  defendant  is  only  liable  for 
the  damages  caused  by  his  own  acts,  and  not  for  those  which 
are  separable  from  them  as  being  caused  by  the  plaintiff  or 
a  third  party,  the  dufondant  is  not  liable  for  subsequent 
damage  which  is  caused  by  the  [)laintiff  neglecting  to  avoid, 
as  far  as  a  reasonable  man  should  do,  the  effects  of  the 
defendant's  negligence  (c). 

The  plaintiff  may  recover  in  America,  at  all  events,  for 
damages  caused  by  the  defendant's  negligence  before  the 
plaintiff  by  his  own  negligence  increased  the  damage  (d). 

[479]  Where  the  injury  done  to  the  plaintiir  has  ne- 
cessitated expenses,  and  the  phiintiff  has  become  liable  to 
some  third  party,  he  may  recover  damages  to  cover  his 
liability  (e). 

Formerly  money  paid  to  a  physician  was  not  recoverable, 
there  being  only  a  moral  obligation  to  pay  {/);  but  now, 
under  the  21  &  22  Vict.  c.  90,  s.  31,  registered  physicians 

(6)  Definition,  nnle,  p.  1.  made    by  defendant,    not   put   out   by 

(c)  See  Haldwin  v.  V .  8.  Tel.  Co.,  45  plaintiff.  The  facts  of  this  caae  are  not 
N.  Y.  IH,  and  the  other  cases  cited  in  stated).— [See  Georgia  It.  &  B.  Co.  r. 
Shearman,  s.  508,  note  (2).— [See,  also,  IJerry.  78  Ga.  744  ;  4  S.  E.  Rep.  10.] 
Pacific  Exp.  Co.  r.  Darnell  (Texas),  6  8.  (e)  Randall  v.  Raper,  27  L.  J.  Q.  B. 
W.  Hep.  "fi-j;  Durgin  r.  Neal,  82  Oal.  595;  266;  E.  ».  &  E.  84 ;  Spatk  r.  Ileslop.  2.S  L. 
23  Pac.  Rep.  1:53]  J.  Q.  B.  197;  Mason  r.  Barker.  1  C.  &  K. 

(d)  Stebbms  v.  Central  Vermont  Ry.  160. 

Co.,  54  Vt.  464;   41  Anier.  Rep.  SD5  (fire  (/)  Dixon  i:  Bell,  Starklc,  287. 

(/)  In  America  the  rule  Is  well  settled,  that  the  expenses  of  medical 
attention  are  recoverable  iu  such  action.s. —  Lutcher  &  Moore  Ll)r.  Co.  v. 
Dyson  (Tex.  Civ.  App.),  30  S.  W.  Rep.  01;  Robinson  v.  Simpson,  8 
Houst.  398;  32  All.  Rep.  287;  Whelan  v.  New  York,  etc.,  R.  Co.,  38  Fed. 
Rep.  15;  Donnelly  v.  Ilufschmidt,  79  Cal,  74;  21  Pac.  Rep.  54G;  Ilulehan 
V.  Green  Bay,  etc.,  R.  Co.,  G8  Wis.  620;  32  N.  W.  Rep.  529;  Kendall  r. 
City  of  Albia,  73  la.  241 ;  34  N.  W.  Rep.  833;  Kiancy  v.  Folkerta,  84  Mich. 


602  DAMAGES. 

may  recover  their  fees  unless  the  college  has  passed  a 
bylaw  to  prevent  them  (g). 

The  plaintiff  is  entitled  to  such  prospective  damages  as 
will  to  a  reasonable  certainty  arise  (h)  and  the  same  has 
been  held  in  respect  of  injury  to  real  property  («). 

Where  a  plaintiff  is  disabled  for  life  the  measure  of 
damages  is  not  to  be  taken  from  the  amount  of  an  annuity 
which  would  replace  the  annual  salary  of  the  deceased,  for 
it  does  not  follow  that  he  would  have  retained  his  situation 
for  the  whole  of  his  life;  but  a  reasonable  sum  must  be 
given  {Jc). 

In  the  case  of  a  railway  accident,  it  was  held  that  there 
was  a  contract  to  carry  a  man's  wife  safely,  and  that  she 
being  injured,  and  her  husband  sustaining  by  such  breach 
of  contract  some  pecuniary  damage,  his  right  of  action 
survived  to  his  executrix,  who  was  the  wife,  and  she  could 
[480]  recover  therefore  for  his  loss  by  the  injuries 
which  she  had  sustained  (Z). 

In  cases  of  injuries  to  property,  the  measure  of  damages 
is  the  cost  of  reinstating  the  property,  if  the  plaintiff  as  a 

(g)  Gibbon  V.  Budd,  32  L.  J.  Ex.  182.  (i)  Lamb  v.  Walker,  L.  R.  3  Q.  B.  D. 

(h)  Richardson  v.  Melli8h,2  Bing.240;  389;    Blackhouse  v.  BonomI,  9  H.  L.  C. 

Ingram  v.  Lawson,  8  Sc.  471;  Fetter  v.  503. 

Beal,  1  Lord  Raym.  339;  Goslin  v.  Corey,  (A)  Rapson  v.  Cubitt,  Car.  &  M.  64. 

8  Sc.  N.  R.  21 ;  Gregory  v.  Williams,  1  0.  {I)  Potter  v.  Metropolitan  Ry.  Co.,  32 

&  K.  568;  [see  infra],  L.  T.  N.  S.  36  (Ex.  Ch.). 

616 ;  48  N.  W.  Rep.  283 ;  City  of  Atchison  v.  Rosa,  43  Kan.  605 ;  23  Pac.  Rep 
561;  Gulf,  C.  &  S.  F.  Ry.  Co,  v.  Campbell,  76  Tex.  174;   13  S.  W.  Rep.  19 

(h)  Secord  v.  St.  Paul,  etc.,  R.  Co.,  18  Fed.  Rep.  221;  Mackoy  v.  Mis 
souri  Pac.  Ry.  Co.,  18  Fed.  Rep.  236 ;  Ward  Co.  v.  New  Orleans  City  R 
Co.,  35  La.  Ann.  202;  Wallace  v.  Wilmington  &  N.  R.  Co.,  8  Houst.  529 
18  Atl.  Rep.  818;  Howard  Oil  Co.  v.  Davis,  76  Tex.  630;  13  S.  W.  Rep 
630;  Towneend  v.  City  of  Paola,  41  Kan.  591;  21  Pac.  Rep.  596;  3  Suth- 
erland on  Damages,  p.  722. 

In  Houston,  etc.,  R.  Co.  v.  Willie  (53  Tex.  318),  an  action  of  damages 
for  personal  injuries  producing  disability,  it  was  held  that  the  measure  of 
damages  was  such  an  amount  as  would  purchase  an  annuity  equal  to  the 
interest  on  the  difference  between  what  the  plaintifE  could  earn  before 
and  what  he  could  earn  after  the  injury,  and  not  such  a  principal  sum  as 
would  produce  such  interest. 


DAMAOKS —  TKUSONAL    IN.IUKIK8.  60.J 

reasonable  man  would  have  reinstated  the  property;  but 
if  not,  then  the  depreciation  in  the  value  is  the  trut- 
measure  (wi). 

For  damaf^es  in  carriers'  cases,  sec  Chapter  III.  s.  8,  p. 
175,  "Carriers;"  and  for  damages  under  Lord  Camp- 
bell's Act,  see  Chapter  VII.,  '♦  Lord  Campbell's  Act." 

Joint  tortfeasors  may  in  general  be  sued  jointly  or  sep- 
arately (n),  so  if  the  co-proprietors  of  a  coach  intrust  the 
driving  to  one  of  their  number  all  will  be  responsible  for 
his  negligence  (o);  and  if  two  omnibuses  are  racing,  and 
one  of  them  runs  over  a  man,  he  may  recover  against  cither 
proprietor  {p). 

(m)  Shearman,  8.  OOJ;  citing  McGnire  C.  R.  637;  Soathwcetcm  T.  &  T.  Co.  r. 

V.  Grant,  1  Dutch.  1550;  Lukln  v.  Godsall,  Crank  (Tux.  Civ.  App  ),  27  S.  W.  Kep. 

Peaku'B  Add.  1.5;  Housee  r.  Hammond,  ;{S.     See  also  Webb's  I'ollock  on  Torts, 

89  Barb.  89;  Terry  v.  New  York,  8  Hosw.  p.  2;J(i,  cd.  n.,  where  the  American  casefi 

404;  Vhilbeok  v.  N.  Y.  Central  Ky.  Co.,  are  collated.] 

36  Barb.  644.  (o)  Morcton  v.  Hardern,  4  B.  A  C.  223; 

(n)  Addison  on  Torts,  5th  ed.,  by  L.  bat  as   to  contribution,  sec  Pearson  v. 

W.  Cave,  Q.  C. ;  (1  Bates' Pleadings,  57,  Skclton,  tn/r«. 

68].—  [See  Galveston,  H.  &  S.  A.  Ry.  Co.  (p)  Thorogood  r.  Bryan,  8  C.  B.  151, 

I'.  Co8kell,6Tcx.  Civ.  App.  IGO;  26  S.  W.  per   Cresswell,   J.,    during    argument, 

Kep.  48t!;  Wolff  Mfg.   Co.   v.  Wilson,  46  supra. 
111.  App.  3«1 ;  Booth  v.  Ratte,  21  Can.  S. 

(??»)  Southern  Marble  Co.  v.  Darnell  (Georgia;,  21  S.  E.  Rep.  531; 
Loui.sville,  N.  A.  &  C.  R)\  Co.  v.  Sparks  (Ind.  App.),  40  N.  E.  Kep.  54G; 
Autenrieth  v.  St.  Louis  &  S.  F.  R.  Co.,  3G  M.>.  App.  254;  Paciflc  Exp.  Co. 
V.  Lasker  R.  E.  Assoc,  81  Tex.  81;  16  S.  W.  Rep.  792;  Pacitlc  Expre.s.s 
Co.  V.  Smith  (Texas),  16  S.  W.  Rep.  998;  Langfeldt  r.  McGrath,  33  HI. 
App.  158;  Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Hogsett,  67  Tex.  685;  4  S.  W. 
Rep.  365;  Owens  v.  Missouri  P;ic.  Ry.  Co.,  67  Tex.  679;  4  S.  W.  Rep. 
693;  Baldwin  v.  Chicago,  etc.,  Ry.  Co.,  35  Minn,  354. 

Where  plaintiff's  property  was  destroyed  by  Are  by  the  negligence,  of 
defendant  company,  the  damages  were  the  value  of  the  property  at  the 
time  it  was  destroyed,  with  interest  upon  it  from  that  time  to  the  time 
of  the  judgment.  —  Parrottr.  Housatouic  R.  Co.,  47  Conn.  575. 

In  an  action  for  injury  to  real  estate  by  blasting,  the  plainliflf's  mental 
anxiety  in  relation  to  his  personal  safety  "nd  that  of  his  family  it,  not,  in 
the  absence  of  personal  injury,  an  element  of  damage  (Wyraan  v.  Leavltt, 
71  Me.  227;  36  Am.  Rep.  303);  and  one  entitled  to  damages  for  being 
deprived  of  lateral  support  for  his  land,  designed  for  a  burial  place, 
was  held  not  entitled  to  have  an  injury  to  his  feelings  considered  when 
defendant  intended  no  injury  though  grossly  careless. —  White  v. 
Dresser,  135  Mass.  150;  46  Am.  Rep.  454. 


604  DAMAGES. 

So  if  several  persons  are  jointly  bound  to  perform  a  duty 
they  are  jointly  and  severally  liable  for  omitting  to  perform 
it,  or  for  performing  it  negligently  (q). 

[481]  In  trespass  each  tortfeasor  is  liable  for  the 
whole  of  the  damages  (r),  and  there  can  be  no  contribu- 
tion ;  for  if  a  plaintiff  recovers  judgment  against  two  tort- 
feasors, and  levies  the  whole  damages  upon  one  of  them, 
he  has  no  claim  for  a  moiety  from  the  other  (s). 

So  also  in  negligence,  if  two  persons  are  engaged  in 
doing  a  negligent  act,  they  may  be  sued  jointly,  and 
they  are  jointly  and  separately  liable  for  the  whole  of  the 
damages  (t). 

It  should  be  observed  that  the  rule  that  one  tortfeasor 
cannot  recover  contribution  against  another  only  applies 
where  such  tortfeasor  knew  that  he  was  doing  something 
illegal  (u). 

So  where  a  coach  was  driven  negligently  by  the  servant 
of  the  proprietors,  and  a  person  whose  horse  was  injured 
brought  an  action  agamst  one  proprietor  and  recovered, 
and  that  proprietor  brought  an  action  against  one  of  his 
CO- proprietors,  it  was  held  that  the  first  proprietor  was 
only  a  tortfeasor  by  inference  of  law,  and  therefore  could , 
have  recovered  (x). 

So  also  the  rule  does  not  apply  where  one  person  has 
employed  another  to  do  an  act  not  unlawful  in  itself,  and 
has  indemnified  him  (y). 

(q)  Ferguson  v.  Earl  of  Klnnonl,  9  Adamson  v.  Jervis,  4  Blng.  72;  Better. 

CL  &  F.  251.  Gibbons,  2  A.  &  E.  67 ;  [1  Chitty  on  Plead- 

(r)  Hume  v.  Oldacre,  1  Stark.  352.  ings,  47,  note,  ]6th  Amer.  Ed.]. 

(s)  Merreweather  v.   Nixan,  8  T.  R.  {x)  Pearson  v.  Skelton,  1.  &  M.  W.  604 

186;  [IChittyonPleadings,  47,  note,  16th  There  was  a  non-suit,  because  being  a 

Amer.  Ed.].  partnership  matter,  the  remedy  was  In 

it)  Grayi;.  Pullen,  5  B.  &  S.  790;  Steel  equity.—  [See  Printup  v.  P.itton,  01  Ga. 

V.  Lester,  L.  R.  3  C.  P.  D.  121;  47  L.  J.  0.  422;  18   S.  E.  Uep.    311;   D411ingham   v. 

P.  43.  Crank,  (Texas),  27  S.  W.  Rep.  93]. 

(m)  Merreweather  v.    Nixan,  supra;  {y)  Merreweather  v.  Nisan,  supra. 


TABLE  OF  CITATIONS. 


References  are  to  Pages. 


A. 


Aaron  v.  Second  Ave.  R.  Co.,  596. 

A.  &  N.  R.  R.  Co.  V.  Bailey.  :s,  519. 

Abbe  f.  Rood,  43(5. 

Ablietl  V.  Chicago,  etc.,  R.  Co.,  50. 

Abbcttr.  JohnHon  Co.,  13(i,  371. 

Abblllr.  Lake  Erie  &  W.  R.  Co.,  506. 

Al)bnlt  f.  Freeman,  :{90,  524. 

Abbott  v.  Jackson,  IOC. 

Abbot  i\  M((;;id(len,652. 

Abbott  r.  M!icfle,468. 

Abbott  f.  R.  R.  Co.,  93,  96. 

Abbrof.  Ja.)Ulth,  252. 

Abell  r.  Railroad  Co.,  387. 

.\brain8  f.  Milwaukee,  etc.,  R.  Co.  S45. 

Acker  r.  Anderson  Co.,  35. 

Ackerlyr.  White,  107. 

.Vckeruian  i\  Ilalsey,  325. 

Ackert  r.  Lan-tlnp,  280. 

Acton  V.  Rlundell,  96. 

Adair  r.  lirimnier,  262. 

Adams  f.  Rarreit,  548. 

Adams  f.  C'lem,  417. 

Adams  r.  Durham  &  N.  R.  Co.,  96. 

Adums  r.  First  Plain  Bank,  434. 

Ad.-ims  r.  Fletcher,  102. 

Adams  r.  Hall,  133. 

Adams  v.    Lancashire  &  Yorkshire   Ry. 

Co.,401.479,  .V.tl. 
Adams  f.  Nelson,  263. 
Adams  V.  Nightingale,  238,  243. 
Adams  v.  New  York,  L.  E.  &  W.  R.  Co., 

61. 
Adiims  f.  Oshko'h,  318. 
Adams  r.  Spangler,  453. 
.\(lain8  V.  Stewart,  422. 
Adams  r.  ^\■i!<ca8.<lf■t,  135. 
.\danis  V.  Young,  46. 
Aduinson  v.  Jervls,  604. 
Adams  Kxpress  Co.  r.  Harris,  347. 
Adams  Express  Co.  r   Hoeing,  347. 
Adams  Kxpress  Co.  v.  Holmes,  347. 
Adams  Express  Co.  r.  Jackson,  337. 
Adams  Express  Co.  r.  Steltaners,  346. 
AumsoN  onTorts,  5th  cd.,  125,  468,607, 

r>S8,  603. 
Aduison  on  Contkacts,  266. 
Adyet'.  Feullleteau.  263. 
^Elna  Ins.  Co.  v.  Alton  City  Bank,  443. 
Agncwr.  Corunna,  14.3. 
Agnew  f.  The  Contra  Costa,  351. 
Agrell  V.  L.  N.  W.  Ry.  Co.,  363. 
Ahem  V.  Oregon,  T.  &  T.  Co.,  32. 
.\horn  r.  Steel.  105 
Aiken  v.  Frankford,  etc.,  R.  Co..  376. 
A.  J.  Anderson  Kleetrlc  Co.  v.  Cleburne, 

W.  I.  &  L.  Co.,  599. 


Akron  V.  Chamberlain  Co.,  302. 

Alabama.  Connellsville  0.  &  I.  Co.  v. 
I'lltH,  ,^52. 

Alabama,  etc.,  R.  Co.  v.  Hawk,  876. 

Alabama  G.  S.  R.  Co.  v.  Arnold,  34,  49, 
395. 

Alabama  G.  S.  R.  Co.  r.  Chapman.  34,  61. 

Alabama  G.  S.  U.  Co.  r.  Dobbs.CIS. 

Alabama  G.  S.  R.  Co.  v.  Frazler,  598. 

Alabama  G.  8.  R.  Co.  v.  Harris,  208. 

Alabama  G.  S.  R.  Co.  v.  Hill.  873. 

Alabama  G.  S.  R.  Co.  v.  Little,    46. 

Alabama  G.  8.  R.  Co.  v.  Thomas,  344, 
352. 

Alabama  Midland  Ry.  Co.  v.  Martin,  224. 

Alabama  A  V.  Ry.  Co.  r.  Davis,  r>».K 

Alamango  v.  Albany  County  Supervis- 
ors, 415. 

Alair  c    Northern  Pac  R.  Co..  345. 

Abiska  Trc.'idwell  Gold  Mln.  Co.  r. 
Wlielan,  466. 

Albert  V.  Slate,73, 103,  278,  538. 

Alberts  V.  Vernon,  319. 

Albntieu  v.  Mayor,  etc.,  Hnntsville,  186. 

Albertson  v.  Keokuk,  etc.,  R.  Co.,  518. 

Alcorn  r.  Sadler,  W. 

Alden  v.  Minneapolis,  94,  302 

•Milrlch  r.  The  l5o.-,ton,  etc.,  R.  Co.,  841. 

Aldrlch  V.  Wright,  SO. 

Aldrldge  v.  G.  W.  Ify.  Co..  348,  347,  859. 

Alexaniler  1-.  Big  Rapids,  307. 

Alexander  I'.  Humber,  2. 

Alexander  r.  Mandeviile,  71. 

Alexander  r\  Nepesning  Rd.  Co.,  386. 

AlexaiultT  f.  O.-likoBh,  480. 

Alexander  r.  IMrhmond  A  D.  R.  Co..  600. 

Alexander /'.  'I'own  of  New  Castle,  38. 

Alexander  c.  United  States,  97. 

Alexan'lrla  &  F.  R.  Co.  i'.  Herndon.  895. 

Alexandria  M.  A  K.  Co.  r.  Painter,  472. 

Alexaiiilrla  &  R.  Co.  v.  Brown.  371,  372. 

A.  L.  &  .1.  J.  Reynolds  Co.  v.  Third  Ave. 
R.  Co.,4tw'j. 

Alldav  r.  Great  W.  Ry.  Co..  343. 

Alleghanv  ('iiv  f.  Zimmerman,  29. 

Allen  r.  (Mty  o"f  (Jhlppewa  Falls,  303. 

Allen  c.  City  of  Boston,  305. 

Allen  i\  Carter,  449. 

Allen  v.  (  lark,4;W. 

Allen  i:  Havward,  220,  221. 

Allen  r.  Kirk,  4.54. 

Allen  f.  L.  AS.  W.  Rv..  203. 

Allen  1-.  Merchants'  Bunk.  443,  452. 

Allen  r.  Peiinsvlvanla  Ity.  Co..  ."iOO. 

Allen  !•    I'lttsliurgli.  etc  ,  R.  Co.,  655. 

Allen  r.  Texas  A  i'.  Ry.  Co  .  518. 

Allentown  Bank  c.  Rex.  440. 

Allerton  Packing  Co.  r.  Kgan,494. 

Aliis  I-.  Columbia  University.  480. 


((JOo) 


606 


TABLE   OF   CITATIONS. 


References  are  to  Pages. 


Allison  V.  Bank,  548. 
Allison  V.  Rayner,  438. 
Allison  V.  The  Western,  etc.,  R.  Co.,  289. 
Allison  Mfg.  Co.  V.  McCormlck,  524. 
Alperin  v.  Earle,  107. 
Allphin  V.  Working,  592. 
AHyn  v.  Boston  &  Albany  R.  Co.,  50. 
Alston  V.  Grant,  101. 
Althorf  V.  Wolfa,  212,  571. 
Alton  V.  Midland  Ry.  Co.,  368,  369. 
Altnow  V.  Sibley,  137. 
Altoonat).  Lotz,  483. 
Aniboch  v.  Baltimore  &  O.  R.  Co.,  345. 
Ambrose  v.  McDonald,  437. 
Am.  DiBt.  Tel.  Co.  v.  Walker,  59. 
American  Express  Co.  v.  Sands,  346. 
American  Union  Tel.  Co.  v.  Fatman,  593. 
AmeriCi  n  Water  Works  Co.  v.  Dough- 
erty, 596. 
American  v.  Eldridge,304. 
Ames  V.  Jordan,  214. 
Ames  V.  Union  Rv.  Co.,  368. 
Ames  V.  Mobile  &  O.  R.  Co.,  539. 
Anchor  Line  v.  Dator,  346. 
Anderied  v.  Railroad  Co.,  339. 
Anderson  v.  Chicago,  etc.,  R.  Co.,  503, 

543,  544. 
Anderson  v.  Chicago,  B.  &  Q.  R.  Co.,  471. 
Anderson  t'.  City  of  Wilmington,  301. 
Anderson  V.  Dickie,  82. 
Anderson  v.  Dundee  State  Bank,  442. 
Anderson  v.  London  &  N.  West.  By.  Co., 

336. 
Anderson  v.  Oppenhelmer,  83, 101. 
Anderson  v.  Scholey,  393. 
Anderson  v.  Scully,  77. 
Anderson  v.  The  Ashebrooke,  491. 
Anderson's  Die.  of  Law,  l. 
Andrews  v.  Boedecker,  214. 
Andrews  v.  Chicago,  etc.,  Ry.  Co.,  553. 
Andrews  v.  Capitol,  etc.,  R.  Co.,  377. 
Andrews  v.  Ft.  Worth  &  D.  C.  Ry.  Co., 

365. 
Andrews  v.  Handley,  439,  430. 
Andrews  v.  Mason  City  &  Ft.  D.  R.  Co.,  32. 
Andrews  v.  Schmidt,  26.i. 
Andrist  v.  Union  P.  Ry.  Co  ,  50. 
Angell  on  Carriers,  338,  346. 
ANGELL  &  Ames  on  Corp.,  293,  324, 325, 

32K. 
Angus  &  Co.  V.  Dalton,  6,  7, 11,  66,  67,  68, 

69,  214,  271. 
Angus  V.  Lee,  71. 

Annapolis,  etc.,  B.  Co.  v.  Baldwin,  112. 
Anniston  &  A.  R.  Co.  v.  Ledbetter,  340. 
Antenrieth  v.  St.  L.  &  S.  F.  R.  Co.,  603. 
Appeal  of  Dickinson,  264. 
Appeal  of  Fesmire,  262. 
Appeal  of  Hatch,  262. 
Appeal  of  Hele,264. 
Apple  V.  Board  Comrs.  Marion  County, 

478. 
Appleby  V.  Franklin,  548,  549. 
Appleby  V.  State,  453. 
Apsev  V.  Detroit,  L.  &.  N.  R.  Co.,  488. 
Arcade  Hotel  Co.  v.  Wlatt,  414, 417. 
Archer  V.  Ft.  Wayne  &  E.  Ry.  Co.,  377. 
Arctic  Fire  Ins.  Co.  v.  Austin,  216,  491, 

.-.12. 
.\rden  v.  Goodacre,  587. 
.Vrdsoni;.  Eastern  Ry.,394. 
.Vrgns  V.  Sturgls,  314. 
Ariz  V.  Chicago,  etc.,  R.  Co.,  505. 
Arkansas  Tel.  Co.  r.  Raltcrce,  489. 


Armendalz  v.  StUlman,  27. 
Armlstead  v.  Fuller,  413. 
Armstrong  v.  Ackley,  322. 
Armstrong  v.  Chicago,  etc.,  Ry.  Co.,  348. 
Armstrongs.  Craig,  429. 
Armstrong  v.  Hurst,  437. 
Armstrong  v.  Midbnry,  289. 
Armstrong  v.  L.  &  Y.  Ry.  Co.,  506,  507. 
Armsworlh  v.  S.  E.  Ry.  Co.,  545,  5%. 
Armstrong  v.  United  States  Exp.  Co., 

344. 
Arnold  v.  Cheque  Bank,  441. 
Arnold  V.  Norton,  127. 
Arnold  V.  Scholfleld,  346. 
Arrowsmlth  v.  Nashville  &  D.  R.  Co., 

372. 
Arthur  V.  St.  Paul  &  D.  By.  Co.,  Minn., 

340. 
Artusy  v.  Missouri  Pac.  Ry.  Co.,  502. 
Artz  V.  Chicago,  etc.,  R.  Co.,  504. 
Aryman  v.  Mar8halltown,322. 
Ashby  V.  White,  445,  .509. 
Ashenden  v.  L.  B.  &  S.  C.  Ry.  Co.,  343. 
Ashley  v.  White,  507. 
Ashmore  v.  Penn.  R.  Co.,  344. 
Ashton  V.  Detroit  City  Ry.  Co.,  489. 
Aspern  v.  Churchill,  90. 
Aston's  Estate,  265. 
Aston  1'.  Heaven,  393. 
Aston  V.  Newton,  317. 
Aston  V.  Nolan,  8,  218. 
Ataton  v   Norfolk&C.  B.  Co.,95. 
Atchison,  etc.,  R.  Co.  v.  Bradshaw,  119. 
Atchison,  etc.,  R.  Co.  v.  Butcher,  391. 
Atchison,  etc.,  R.  Co.  v.  Cash,  112, 122. 
Atchison,  etc.,R.  Co.  r.  Cochran, 360. 
Atchison,  etc.,  R.  Co.  v.  Flllhan,464. 
Atchison,  etc.,  R.  Co.  v.  Fllnn,  513. 
Atchison,  etc.,  R.  Co.  v.  Frier,  373. 
Atchison,  etc.,  R.  Co.  v.  Grant,  345,  354, 

361. 
Atchison,  etc.,  R.  Co.  v.  Griffis,  113. 
Atchison,  elc.,R.  Co.  v.  Hague,  502. 
Atchison,  etc.,  R.  Co.  v.  Hughes,  545. 
Atchison,  etc.,  R.  Co.  v.  Lawler,  344,  359. 
Atchison,  etc.,  R.  Co.  v.  Lindley,  384. 
Atchison,  etc.,  R.  Co.  v.  McGlanIs,  597. 
Atchison,  etc.,   R.  Co.  v.    Mldgett,  494, 

596. 
Atchison,  etc.,  R.  Co.  v.  Randall,  205. 
Atchison,  etc.,  R.  Co.  v.  Roach,  3' 6. 
Atchison,  etc.,  R.  Co.  v.  Shaft,  115, 119. 
Atchison,  etc.,  R.  Co.  v.  Smith,  514,  520. 
Atchison,  etc.,R.  Co.  z).  Walton,  528. 
Atchison,  etc.,  R.  Co.  v.  Washburn,  344. 
Atchison,  etc.,  R.  Co.  v.  Weber,  543. 
Atchison,  etc.,  R.  Co.  v.  Town8end,505. 
Atchison,  etc.,  R.  Co.  v.  Wilson,  561. 
Atkinson  v.  Abraham,  489. 
Atkinson  v.  Atlantic,  etc.,  R.  Co.,  590. 
Atkinson   v.    Goodrich    Transportation 

Co.,  38,  46. 
Atkinson  v.  Morse,  592. 
Atkinson  v.  New  Castle  Water  Works 

289,  293,  448. 
Atlanta  v.  Pardue,  306. 
Atlanta  &  Air  Line  By.  Co.  v.  Gravltt, 

614,  553. 
Atlanta  Cotton  Seed  Oil  Mills  v.  Coffey, 

72,  74,  288, 
Atlanta,  etc.,R.  Co.  v.  Ayers,463,491,540. 
Atlanta,  etc.,  R.  Co.  v.  Hudson,  122. 
Atlanta,  etc.,  R.  Co.  v.  Leach,  484. 
Atlanta,  etc.,  R.  Co.  v.  Venable,  655. 


TABLE    OF    CITATIONS. 


607 


References  are  to  Pages. 


Atlanta,  etc.,  K.  Co.,  v.  Wyloy,  i(a,  5S7. 
.Vllanla,  etc.,  1{.  Co.  v.  Dlcktnaon,  370. 
AtlorneyOen.  r.  Dixie,  'iCtb. 
.Vltoroey  (ienernl  v.  Ely,  139. 
Altorney-tioni'ral  v.    Uoyal   Oollego  of 

I'hyHlcians,  4-.'0. 
Attorney  Gun.  r  .SIddon,  210. 
Alropa  f .  Costcllo,  .M:!,  544,  552. 
Atwuod  r.  Atwater,  451. 
Aiwood  I'   City  of  Uangor,  304. 
Atwood  r.  FiBk,  548. 
Atwater  v.  Lowp,  283. 
Atwater  v.  Town  of  Veteran,  2. 
.\u({UHta,  etc.,  liy.  Co.  v.  Glover,  554. 
4aKU8ta  f.  Ilafers,  321. 
Auguhta,  etc.,  K.  Co.  r.  McElmurrv,  463. 
AuKUHta,  etc.,  U.  Co.  r.  Uandall,  597. 
AuKUSta  Factors'  v.  DavlH,  545. 
Aurora  Cotton  Mills  i-.  Ogbert,  479. 
Aurora  r.  Dale.  315. 
Aurora  r.  Hlllinan,  .113. 
Anrorar.  Tarks,  311. 
Austin  V.  Gt.  Western  Ry.   Co.,  12,  363, 

:no,.37l. 
Austin  V.  Hudson  River  R.  Co.,  8. 
.\n8tin  V.  Nelson,  4;S0. 
Austin  &  N.  W.  K.  Co.  v.  Beatty,  486. 
Averltt  t'.  Murrell,81. 
Aydcs  V.  Southeastern  Ry,  Co.,  468. 
Ayer  r.  City  of  Norwich,  142. 
Ayres  V.  Hammondsport,  311. 
Ayroa  v.  Russell,  423. 


B. 

Babbitt  V.  Bnmpus,  428. 

Uach  r.  IJallard.  4:i5. 

Backhouse  r.  Honomi,  9. 

Kabcock  V.  Hrown,  430. 

Uabcock  V.  Chicago  &  Northwestern  R. 
Co.,  K8. 

Rabcock  f.  Fitchburg  R.  Co.,  88. 

Bacon  V.  Baltimore  &  Potomac  R.  Co., 
471. 

Bacon  r.  Roston,  140. 

Bacon  v.  Delaware,  etc.,  R.  Co.,  375. 

Bacheller  r   Pmkham,252. 

Baggage  r.  Powers,  106. 

Bagnall  v.  L.  &  N.  W.  Ry.  Co.,  99. 

Bailey  r.  Lawrence  Co.,  1.16,  145. 

Bailiffs   of   Romncy   Marsh    v.   Trinity 
House,  28. 

Baird  V.  Daley,  60. 

Baird  v.  Shlpman,  2.V2. 

Baird  v.  Vaughan,  284. 

Baker  f.  I^orough  of  North  East,  140. 

Baker  v.  Houlton,  535. 

Baker  r.  Bower,  456, 

Baker  f.  Chicago,  M.&  8U  P.  Ry.Co.,  112. 

Baker  V.  Fehr,  474. 

Baker  ».  Flint  &  P.  M.  R.  Co.,  503. 

Baker  v.  Louisville  &  N.  R.  Co.,  538. 

ItMkert-.  Madl.Hon,307. 

Baker  r.  Pennsylvania  Co.,  44. 

Baker  i-.  Portland,  3'.>. 

Maker  f.  Railroad  Co.,  351. 

Baker  f.  State,  450. 
,  Baker  r.  Town  of  Shoales,  3»2. 

Balch  V.  Grand  Rapids  &  I.  R.  Co.,  546. 
J  Baldwin  r.  Bank  of  Louisiana,  443. 

:taidwlni'.  Barney,  40,480. 
j  Baldwin  r.  Chicago,  etc.,  R.  Co.,  601. 

I 


Baldwin  r.  L.  C.  A  D.  Ry.  Co.,  Sgs. 

Baldwin  f.  II.  S.  Tel.  Co.,  8a3,  601. 

Bales  r.  Wlnglleld,  454. 

Balfeur  v.  Haird,  613. 

Ball  f.  El  Paso,  :{15. 

Ball  r.  Mabry,  .^97. 

Ball  f.  Nye,  98.  27.5. 

Ball  f.  Wabash,  etc.,  Ry.  Co.,  344. 

Ballard  r.  ToinlinHon,  98. 

Ballentino  r.  North  Missouri  R.  Co.,  337. 

Balls  r.  Woodward,  319. 

Bulllinore  r.  O'Donnell,  292. 

BaUiinoro  v.  Pendleton,  140. 

Baltimore   City    Passenger    Ry.    Co.  v. 

Kemp,  44. 
Baltimore  r.  Roanev,  8. 
Baltimore,  etc.,  R.  Co.  r.  Boteler,  603. 
Baltimore,  etc.,  R.  Co.  r.  Dorsoy,  88. 
Baltimore,  etc.,  R.  Co.  r.  Fryer,  618. 
Baltimore,  etc  ,  R.  Co.  f.  Kane,  63,  375. 
Baltimore,  etc.,  R.  Co.  f.  Kean,  4t>5. 
Baltimore,  etc.,  R.  Co.  v.  Keedy,  .337. 
B;iltlmore,  etc,,  R.  Co.  v.  Kelly,  .'>44. 
Baltimore,  etc.,  R.  Co.  c.  Mah,  5<)1. 
Bultimore,    etc.,   R.  Co.  v.  McDonnell, 

514,617. 
Baltimore,  etc.,  R.  Co.  v.  Meyers,  380. 
Baltimore,  etc.,  R.  t-'o.  v.  Noell's  Admr., 

627,  .542,  514. 
Baltimore,  etc.,  R.  Co.  v.  Pumphroy,  35'J. 
Baltimore,  etc.,  R.  Co.  v.  Schwlndllng, 

520. 
Baltimore,  etc.,  R.  Co.  r.  Skoels.  345. 
Baltimore,  etc.,  R.  Co.  r.  State,  385,  55.3. 
Baltimore,     etc.,    R.    Co.    v.    Sulphur 

Springs,  392. 
Baltimore,  etc.,  R.  Co.  v.  Whltacre,  473, 

474,498. 
Baltimore,  etc.,  R.   Co.  v.    Wlghtman, 

374,552. 
Baltimore,  etc.,  Ry.  Co.  v.  Woods,  111. 
Baltimore,  etc.,  R.  Co.  v.  Woodruff,  461. 
Baltimore  &  1*.  R.  v.  Keanev,  30. 
Baltimore  &  L.  T.  Co.  c.  CaBScll,  140. 
Baltimore    and    R.    Turnpike    Road   v. 

State,  552. 
Baltimore  Traction  Co.  r.  State,  376. 
Baltimore  Traction  Co.  v.  Wallace,  462, 

504. 
Baltimore  &  Y.  T.  Road  r.  Leonhardt.  483. 
Bamberger  v.  Citizens'  St.  R.  Co.,  518. 
Bancroft  v.  Boston,  etc.,  R.  Co.,  56,  540, 

551. 
Banghmant'.  [..oulflvllle,  etc.,  R.  Co.  .".47. 
Banghman  r.  Shenang",  etc.,  R.  Co.,  498. 
Bangor  r.  Lansil,  93,  94. 
BaugUH.s  f.  Atlanta.  306. 
Bank  v.  Downey,  324. 
Ifank  of  C;ommerco  r.  Ginocchio,  34. 
Bank  of  Ireland  v.  Trustees  of  Evans' 

(;iiarlty,441. 
Bank  of  Kv.  v.  Adams  Kxp.  Co.,  343. 
Bank  of  I.fnilsbiirg  f.  Ober,  443. 
Bank  of  St.  Maryr«  r.  St.  .John,  3il. 
Bank  of  tapper  Canada  v.  Bradsbaw  tb 

Others,  443. 
Bankmght  r.  Charlotte  C.  A  A.  R.  Co., 

872. 
Banks  r.  Evans,  4.36. 
Banks  r    Highland  St.  Ry.  Co.,  40. 
Banks  v.  Wabash,  W.  Ry.  Vo.,  27. 
Bannagan  ■-.  Dlst.  Columbia,  SOS. 
Itai-ber  r.  .Mensch,  lO-.i. 
Barber  f.  Whllcley.  lOS. 


608 


TABLE    OF    CITATIONS. 


References  are  to  Pages. 


Barbonr  Co.  v.  Horn,  598. 

Barclay  v.  Leonard,  126. 

Bardwell  v.  Mobile  &  O.  R.  Co.,  480. 

Barfleld  v.  McCombs,  436. 

Barker  v.  Abendroth,  73. 

Barker  v.  City  of  "Worcester,  481. 

Barkers.  Green,  4f>4. 

Barker  v.  Savage,  64,  65,  462,  503. 

Barkley  v.  Wilcox,  93. 

Barley  v.  Chicago,  etc.,  R.  Co.,  546,  520, 

552. 
BarUngv.  "West,  139. 
Barlow  V.  McDonald,  128,  480. 
Barnadiston  v.  Soame,  254. 
Barnard  v.  Poor,  89. 
Barnes  v.  Means,  423. 
Barnes  v.  Newton,  306. 
Barnes  v.  Shreveport  City  R.  Co.,  513, 

520. 
Barnes  v.  "Ward,  74,  80. 
Barnett  v.  Lucas,  547. 
Barney  v.  Pinkham,  420, 
Barney  v.  Saunders,  263. 
Barnowsky  v.  Helson,  531. 
Barnnmv  Terpenning,  24,  125. 
Barnum  v.  Vandusen,  131. 
Barr  v.  City  of  Kansas,  318. 
Barre  v.  Reading  City  Pass  Ry.  Co.,  520. 
Barrett  v.  Hammond,  321, 
Barrett  v.  Southern  Pac.  Co.,  78. 
Barrett  v.  Third  Av.  R.  Co.,  508. 
Barrett  v.  Town  of  Walworth,  142. 
Barron  v.  City  of  Detroit,  301. 
Barrott  v.  Pullman  Palace  Car  Co.,  405. 
Barry  v.  Arnand,  445. 
Barry  v.  Towell,  295. 
Barry  v.  New  York  Central  R.  Co.,  278. 
Barry  v.  Terkildsen,  141. 
Barstow  V.  Old  Colony  R.  Co.,  480. 
Barter  v.  New  Tork  Cent  Ry.  Co.,  373. 
Barter  V.  Wheeler,  366. 
Bartlettf.  Baker,  101. 
Ban\ettv.  Boston  Gas  Lgt  Co.,  290. 
Bartlett  v.  Crozler,  449. 
Barton  r.  Pepin  Co.,  35. 
Bartlett  V.  Pittsburgh,  etc.,  R.  Co.,  356. 
Bartlett  v.  Telegraph  Co.,  527,  594. 
Hartley  I).  City  of  Cincinnati,  302. 
Barton  v.  St.  Louis,  etc.,  R.  Co.,  .53,  378. 
Barwick  v.  English  Joint  Stock  Co.,  202, 

323. 
Bass  V.  Chicago,  B.  &  Q.  R.  Co.,  89. 
Bassett  v.  Salisbury  Mfg.  Co.,  94. 
Basten  v.  Butler,  58. 
Batchelor  v.  Fortesque,  76,  279. 
Bates  V.  Diamond  Crystal  Salt  Co.,  592. 
Bates  V.  Inhabitants, 95, 
r.ates  V.  Pilling,  253. 
Bates  w.  Smith,  93. 
Bathe  V.  Decatur  Co.  Ag.  Soc,  214. 
Bather  tJ.  Day,  418. 
Bathgate  v.  Haskins,  435. 
Battereby  V.  Lawrence,  420,  422. 
Batterson  v.  "Vogel,  415,  416. 
Batton  and  wife  v.  South,  etc,  Ala.  R. 

Co.,  207. 
Baxendale  V.  Bennett,  441. 
Baxendale  v.  East.  Co,  Ry.  Co.,  334,  335, 

341,34:'.. 
Baxendale  w.  Great  East.  Ry.  Co.,  335. 
Baxter  v.  Chicago  R.  L  &  P.  Ry.  Co.,  27. 
Bayle  v.  Tamlyn,  123. 
Bayley  v.  Man,  sheff,  &  Line.  Ry.  Co.,  203, 

205, 


Bayley  v.  Wolverhampton  Water  Works 

Co.,  447. 
Bay  Shore  R.  Co.  v.  Harris,  514. 
Beach  v.  Beach,  434. 
Beach  ON  Contributory  Negligence, 

111,120,277,461,463,482,485,487,491,517. 
Beach  v.  Gregory,  435. 
Bevard  v.  Hoffman,  450,  451. 
Beach  on  Pub.  Corporations,  142,  292, 

302,  304,  305,  306,  307,  309,  589. 
Beach  v.  Parmeter,  64. 
Bealv.  Pittsburgh,  etc.,  R.  Co.,  493. 
Beal  V.  South  Devon  R.  Co.,  346. 
Beale  v.  Posey,  417. 
Bealey  v.  Shaw,  96. 
Beall  V.  Tp.  of  Athens,  35. 
Bean  t».  Carleton,  592. 
Bear  v.  City  of  Allentown,  304, 
Beard  v.  Com.,  ete.,  R.  Co.,  73, 395. 
Beard  v.  Illinois  C.  R  Co.,  339, 
Beard  v.  Murphy,  6,  93. 
Beard  v.  St.  Louis  Elec.  Ry,  Co.,  861. 
Beardsley  v.  Hartford,  317. 
Beardsleyv    Swann,595. 
Beatrice  v.  Reld,  219. 
Beatty  v.  Gilmore.  474. 
Beauchamp  v.  Saginaw  Mining  Co,,  43, 44. 
Beauclaik  v.  Ashburnham,  263. 
Beck  V.  Bellamy,  4.30. 
Beck  V.  Carter,  81,  83, 140, 141. 
Beck  w.  East  Ri\er  Ferry  Co.,  509, 
Beck  V.  Dowell.  598. 
Beck  V.  The  German  Kllnik,  423. 
Becke  V.  Missouri  Pac.  Ry.  Co., 509. 
Becker  v.  Haynes,  417. 
Becker  v.  Janinski,  423,  426,  492. 
Becker  v.  W.  IT.  Tel.  Co.,  594. 
Beckerle  v,  Weiman,65. 
Beckham  v.  Hillier,  613. 
Beckman  v.  Georgia  Pac.  Ry.  Co.,  550, 
Beddell  v.  Long  Island  R.  Co.,  86 
Bedell  v.  Berken,  280. 
Beecher  v.  G.  E,  Ry.  Co.,  362. 
Beeher  v.  Daniels,  77. 
Beems  v.  Chicago,  etc.,  R.  Co.,  554. 
Beers  v.  Hendrickson,  436. 
Beers  v.  Housaionic,  etc.,  R.  Co.,  473. 
Beeson  v.  Green  Mountain  Gold  Mining 

Co.,  543. 
Behlingr.  S.  W.  Pa.  P.  L.,  47. 
Behrens  v.  Great  Northern  R.  Co.,  337. 
Beisergel  v.  Town  of  Seymour,  136, 187. 
Belbee  w.  L.  B .  &  S.  O.  Ry.  Co.,  277. 
Belding  v.  Black  Hills  &  Ft.  P,  R.  Co., 

539,  550. 
Bell  V.  Midland  Ry.  Co.,  587. 
Bell  V.  Smith,  473. 
Bell  V.  Toy, 548. 
Belle  V.  W.  U.  Tel.  Co.,  598. 
Bellefontalne  R.  Co.  v.  Hunter,  50. 
Bellefontalne,  etc.,   R.    Co.  v.  Snyder, 

615,  518. 
Bellemire  v.  Bank  of  U.  S.,  452. 
Belt  V.  Gulf,  etc.,  R.  Co.,  555. 
Belton  V.  Baxter,  64,  65. 
Beniis  v.  Connecticut,  etc.,  R.  Co.,  Ill- 
Benjamin  V.  Ilolyoke  St.  Ry.  Co.,  48'.). 
Bennett  v.  Chicago,  etc  .  R.  Co.,  Ill- 
Bennett  v.  Fifleld,  33, 142. 
Bennetts,  Ford,  130. 
Bennett   v.  Louisville,  etc.,  R.  Co.,  72, 

393- 
Bennett  v.  Lovell,  142. 
Bennett  v.  Mellor,  410. 


TAHLE    OF    CITATIONS. 


GO£f 


Referoncos  are  to  Pa^cs. 


nennott  v.  Milwaukee,  etc.,  K.  (;o.,  12-i. 
lieiiDCtt  i".  Now  Jersey,  etc.,  U.  Co.,  508, 

WW,  510. 
Itcnnctt  V.  Tlio  (UildliifT  .Star,  341. 
Itcnnott  V.  WiiliUHli,  vie,  11.  Co.,  117. 
IJcnnewill  r.  ("uUen,  337. 
ISensal  v.  Mayor,  ftc,.,310. 
Itenscl  I".  Lynch,  41'). 
Henson  f.  ISaltlmoro  Traction  Co.,  76. 
Itenson  i-.  Central  I'ac.  K.  Co  ,  35. 
Benson  v.  Chicago,  etc.,  11.  Co.,  96,552, 

554. 
I(cn8on  1'.  Snarez,  105. 
Benson  !•    Tltcoinb,  472. 
Bent  r.  I'rlest,  324. 
Bcntli^iil  r.  Seifert,03. 
Benton  v.  (iralg,  431. 
Berg  f.  City  of  Milwaukee,  483. 
Bergcr  r.  New  Orleans,  5112. 
Berghelm  v.  tJreat  Kastern  Rv.  Co.,  362. 
Bcrg.nan  v.  St.  Louis,  etc.,  Uy.  Co.,465. 
Berheim  v.  Shannon,  4.53. 
Berkshire  Woolen  Co.  v.  Procter,  417. 
Bernstein  r.  Haxcndale,  336. 
Bernstein  v.  Mcech,  3'.t3. 
Berrlnger  i-.  Gn  at  Kaat.  U.  Co.,  368. 
Berry  v.  Marlx,  60. 

Berry  v.  Kansas  City,  etc  ,  H.  Co.,  372. 
Berry  v.  Louisville,  etc.,  H.  (^o.,  538. 
Boseantr.  G.  W.  Uy.  (;<)..  \m. 
Best  f.  Town  of  Klnston,  555. 
Bcthell  V.  Abraham.  263. 
Hettsv.  Gibbons,  604. 
Belts  r.  (;iov('r8vllle,292,  307. 
Belts  c.  Kailroud  Co.,  .353. 
Bevlns  r.  Kainsev,  452. 
Bcvis  r.  IJalliniofe  &  O.  R.  Co.,  .531. 
Bcyal  r.  Newport  News  &  \V.  V.  R.  Co., 

5ul. 
Bibb  V.  Norfolk  &  W.  R.  Co.,  215. 
Blckford  r.  D'Arey,  429. 
Blederman  r.  Brown,  202. 
Biellng  r.  City  of  Brooklyn,  305. 
Blerir  r.  Hurst,  lt3. 
Blerman  c.  St.  Louis,  307. 
BlKelow  V.  Kalamazoo,  307. 
BIkcIow  v.  Randolph,  IM. 
BiUELow  ON  Touts,  81,  S3. 
Biggs  r.  Huntington,  316. 
Blgler  r.  Toy,  4;«. 
Billings  t'.  FItchbarg  R.  Co..  87. 
Billings  V.  Worcester,  311,  312. 
Blllman  r.  lniIlanu)>oll8  R.  Co.,  32. 
Blllmeyer  r.  Wagner,  .592. 
Blnforil  r.  Johnwlon,  39,55. 
Bingham  v.  Boston,  318. 
Binks  I-.  S.  Y.  Ky.,81. 
Birlieck  v.  Stalford,  483. 
Bird  V.  Kverard,  60. 
Bird  V.  (Ji.  Northern  R.,  523,  526. 
Bird  V.  Holbrook,  80,  28(5. 
BliK'o  V.  Ganlliicr,  78,  514,  519. 
Blrkett  r.  Klnckerbocker  IceCo.,.521,.552. 
Blrkett  v.  Whitehaven  Junction  Ry.  Co., 

34i2. 
Birmingham  v.  Rochester  City  &  15.  R, 

Co.,  142,374. 
Birmingham  Mineral  R.  Co.  v.  Wilmer, 

470. 
Birmingham  Nat.  Bank  r.  Bradley,  442. 
Birmingham  Uy.  &  K.  Co.  v.  Allen,  494. 
Blsailh.n  v.  lUood,  51.5. 
BischolT  V.  People's  Uv.  Co.,  .39,  486. 
Bishop  1-.  City  of  Ceniralla,  146. 


Bishop  f.  St.  Paul  City  Ry.  Co.,  44.     ■ 

Bishop  r.  Weber,  2.x8,  418. 

HlHsell  J'.  N.  Y.  Cent.  R.  Co.,. 386. 

Black  r.  Ashley,  340. 

Black  r.  Chicago,  B.  &  Q.  R.  Co.,  336,837. 

Black  i:  City  or  Lewiblon,  481. 

Black  I'.  Rogers,  437. 

Black  r.  Wabash,  elc,  R.  Co.,  348. 

Black's  Law  Dig.,  1. 

Blackburn  v.  Mintcr,  548. 

Blackhoiise  r.  BononI,  602. 

Blackman  v.  Ganliner  Bridge,  595. 

Blackman  r.  L.  B.  &  S.  Ry.,  ;189. 

Blackmore  v.  Bristol  &  Kxeter  Ry.  Co., 

457. 
Blackmore  v.  Vestry  of   Mile  Lnd  Old 

Town,  13ti,  2'.K). 
Blackwell  r.  Lynchburg  &,  D.  R.  Co.,  551. 
Blacchlnska  v.  Howard,  M.  A  H.  592. 
Blair  r.  Krie  Ry.  Co.,  384,  385. 
Blair  V.  Minneapolis,  etc..  It.  Co.,  117. 
Blake  v.  Burlington,  etc.,  Ry.  Co.,  384. 
Blake  v.  FarrU,  214. 
lUake  r.  Ko.x,  107. 
Blake  v.  (i.  &  W.  Ry.  Co.,  3-82. 
Blake  r.  Md.  Ry.  Co.,  .542,  595. 
Blake  r.  St.  Louis,  142. 
Blake  v.  Thirst,  221. 
Blamires  r.  Lancashire  &  Yorkshire  Ry. 

Co.,  293. 
Blanford  v.  Minneapolis  &  St.  L.  Ry.  Co., 

113. 
Blankcny  r.  W.  U.  Tel.  Co.,  597. 
Blalt  r.  Mcliarron,  73. 
Blenklron  v.  (ireat  Cent.  Gas  Co.,  290. 
Bliss  i\  Matteson,  324. 
Bliss  V.  Pullman  Palace  Car  Co.,  403. 
Bliss  r.  Town  of  South  Ha<lley,  514. 
Block  f.  Railroad  Co.,  :J61,  3<;t;. 
Blockstock  r.  N.  Y.,  etc.,  R.  Co.,  856. 
Bloor  c.  Town  of  I>ellaflelil.  142. 
Blower  V.  G.  W.  Ry.  Co.,  33». 
Blum  V.  Southern  P.  P.  Car  Co.,  401,  402, 

405. 
Bluiuanth  r.  Fitchburg  R.  Co.,  365. 
ISIumenthal  r.  Bralnards,  340. 
Blumenthal  c.  Maine  (^enU  R.  Co.,  365. 
Blyhl  V.  WatervlUe,  :'.()7. 
Blvth  V.  Birmingham  Water  Works,   2, 

26,  29,  99. 
BIyth  r.  Topham,80. 
Blythc  V.  Denver  &  R.  G.  Ry.  Co.,  3.37. 
Board  Com'rs.  Allen  Co.    v.    Creviston, 

143,  146. 
Board  Com'rs.  Boono   Co.  ti.  Mutchlcr, 

34,.')09. 
Board  Com'rs.  Kl  Paso  Co.  v.  Bllsb,  136, 

145. 
Board,  etc.,  Morris  Co.  t'.  Hough,  145. 
Board  of    Com'rs.  Howard  Co.  r.  Legg, 

146. 
Board  of  Com'rs.  Madison  Co.  r.  Brown, 

146. 
Board  Com'rs.  Parke  Co.  f.  Sappcnflcid, 

34,  143. 
Board  Com'rs.  Sullivan  Co.  v.  Sisson,  27, 

145. 
Board  Com'rs.  Vermillloa  Co.  v. Cbippo, 

146 
Boath  r.  Uriscoll,  97. 
Boilwell  f.  Bragg,  412. 
Boehl  r.  Chicago,  etc.,  Ry.  Co.,  352. 
Bohan  r.  Borough  of  Avoca,  303. 
Bohaa  r.  City  of  Waseca,  305. 


39 


610 


TABLE    OF    CITATIONS. 


References  are  to  Pages, 


Boland  v.  Missouri,  etc.,  R.  Co.,  518. 

Bolch  V.  Smith,  79. 

Bolton  V-  Colder,  65. 

Bomor  v.  Maxwell,  363. 

Bond  V.  tvansvllle,  etc.,  R.  Co.,  116,  295. 

Bond  V.  Smith,  474. 

Bonifayr.  Hassell,  592. 

Bonlne  v.  Richmond,  318. 

Bonner  z\  De  Mendoza,  366. 

Bonner  r.  Glenn,  378, 

Books  V.  Danville,  539. 

Boom  V.  Reed,  420. 

Boon  V.  Murphy,  423. 

Boorman  r.  American  Express  Co.,  346. 

Hoolh  V.  Mister,  212. 

Booth  V.  N.  E.  Ry    Co..  343. 

Booth  V.  Ratte,  603. 

Booth  f.  Rome,  etc  ,  R.  Co.,  224, 

Boothby  V.  Androscoggin,  8. 

Borries  v.  Hutchinson,  356. 

Borman  v.  Sandgren,  106. 

Borough  of  Brookville  i\  Arthurs,  309. 

Borough  of  Mauch  Chunk  v.  Kline,  318. 

Borough  of  Sandy  Lake  i\  Farker,  316. 

Borough  of  West  Bellevue  v.  Huddle- 
son,  94. 

Bosler  v.  Seabright,  435. 

Boss  V.  Godsall,  263. 

Boss  V.  Litton,  63,  516. 

Bostock  V.  Floyer,  258. 

Boston  V.  Gray,  105. 

Boston  V.  Henderson,  592. 

Boston,  etc.,  R.  Co.  v.  Dana,  548. 

Boston,  etc.,  R.  Co.  v.  Shanley,  287. 

Boston,  etc.,  R.  Co.  v.  Shidley,  339. 

Bostwick  V.  Minneapolis  &  P.  Ry.  Co., 
40. 

Boswell  V.  Laird,  219. 

Bosworth  V.  Swansey,  481. 

Bott  V.  Pratt,  55. 

Bottenberg  v.  Nixon,  59.* 

Bottoms  V.  Seaboard  &  R.  R.  Co.,  513, 
515. 

Boulder  v.  Niles,  311. 

Boulter  v.  Webster,  543. 

Bourdlerv.  Morgan's,  etc.,  R.  Co.,  96. 

Bourget  V.  Cambridge,  320. 

Bourne  I'.  Dlggles,  433. 

Bourne  v.  Gatliffe,  334. 

Bovee  v.  Danville,  597. 

Bowden  v.  San  Antonia  &  A.  P.  Ry.  Co., 
358. 

Bowe  V.  Hankling,  107. 

Bowell  V.  DeWalk.  412. 

Bowen  v.  City  of  Huntington,  218. 

Bower  v.  Peate,  214,  221,  271, 275, 313,  317. 

Bower  v.  B.  &  S.  W.  R.  Co.,  246. 

Bower  V.  Smith,  422. 

Bowers  v.  Chicago,  etc.,  R.  Co.,  501. 

Bowers  V.  Lovekln,  229. 

Bowes  V.  City  of  Boston,  50,  542. 

Bowes  V.  B:iilroad  Co.,  372, 

Bowker  v.  Pierce,  257. 

Bowles  V.  Kansas  City,  322. 

Bowling  V.  Arthur,  443. 

Bowlsby  V.  Spcer,  93. 

Uowman  v.  New  Orleans,  93. 

Bowman  v.  Tollman,  428. 

Bowman  v.  Wood,  424. 

Boyce  t'.  California  Stage  Co.,  527. 

Boyce  V.  Chapman,  341. 

Boyd  V.  Burkett,  288,  466. 

Boyd  V.  Conklln,  94. 

Boyd  V.  Tcague,  453. 


Boyd  r.  Watt,  133. 

Boylan  v.  Brown,  480. 

Boyle  V.  Tamlyn,  109. 

Boyle  V.  Wiuslow,  426. 

Boys  V.  Pink,  336. 

Boyton  v.  Longley,  94. 

Brackenburg  i-.  Pell,  434. 

Brackenridge  v.  Fitchburg,  314. 

Brackett  v.  Norton,  433. 

Brackett  v.  Sears,  432. 

Bradburne  v.  G.  W.  Ry.  Co.,  571, 588. 

Bradlee  v.  Christ's  Hospital,  67. 

Bradbury  v.  Furlong,  540. 

Bradbury  v.  Sutton,  336. 

Bradford  v.  Anniston,  320. 

Bradley  v.  Andrews,  286. 

Bradley  v.  Ft.  Wayne  &  E.  Ry.  Co.,  489. 

Bradley  v.  Fisher,  450,  451. 

Bradley  v.  Sattler,  541. 

Bradshaw  v.  Lane.  &  New  York  Ry.  Co., 

516. 
Bradstreet  v.  Everson,  433. 
Bradwell  v.  Pittsburgh  &  W.  E.  P.  Ry. 

Co.,  474,  483,  503. 
Brady  v.  Chicago,  542. 
Brady  r.  Giles,  213. 
Brady  v.  Valentine,  103. 
Bramwell  v.  Pennack,  229. 
Branahan  v.  Hotel  Co.,  138. 
Branch  v.  Wilmington,  etc.,  R.  Co.,  344. 
Brand  v.  Craig,  12. 
Brand  v.  Hammersmith  Ry.  Co.,  84. 
Brannen  v.  Kokomo,  etc.,  R.  Co.,  508. 
Brannock  v.  Elmore,  224. 
Branson  v.  Labrot,  519. 
Brant  V.  Midland  Ry.  Co.,  336. 
Brass  v.  Maitland,  288. 
Brasyner  v.  Maclean,  445. 
Breckenrldge  v.  Bennett,  76. 
Bredin  v.  Kingland,  432. 
Bieig  V.  Chicago  &  W.  M.  Ry.  Co.,  495. 
Bremmer  v.  Green  Bay,  etc.,  R.  Co.,  122. 
Bremmer  v,  Williams,  273,  392,  393. 
Brennan  v.  Friendship,  489. 
Brennan  v.  New  York,  316. 
Brennan  V.  Schreiner,  224. 
Brennan  v.  St.  Louis,  314. 
Brentner  v.  Chicago,  etc.,  R.  Co.,  121. 
Bresnahan  v.  Cent.  R.  Co.,  51. 
Bresse  v.  U.  S.  Tel.  Co.,  594. 
Brewer  v.  New  York,  etc.,  R.  Co.,  385. 
Brezee  v.  Powers,  489. 
Brezel  v.  Powers,  82. 
Brice  V.  Bauer,  127. 
Brice  V.  Stokes,  257. 
Brickell  v.  New  York,  etc,  R.  Co.,  508. 
Bridget.  Gummon,  255. 
Bridger  v.  Ashville,  etc.,  R.  Co.,  619, 520, 

5'J5. 
Bridges  v.  L.  &  N.  W.  Ry.  Co.,  399. 
Bridges  v.  North  London  Ry.  Co.,  397, 

487. 
Briggs  V.  Kloss,  8. 
Briggsz).  New  York  Cent.  etc.,R.  Co., 

50'4. 
Briggs  V.  Oliver,  275,  523,  532. 
Briggs  V.  Olson,  529. 
Briggs  V.  Spaulding,  324. 
Briggs  V.  Taylor,  24,  339. 
Briggs  V.  Union  St.  Ry.  Co.,  376. 
Briggs  V.  Warden,  449. 
Bright  Hope  R.  Co.  v.  Rogers,  86,  87. 
Brine  v.  Great  Western  Ry.  Co.,  140. 
Brinkerholf  v.  Bostwick,  325. 


TAULK    or    CITATIONS, 


»;iL 


RefereiM'os  arc  fo  Tagps. 


Brlnkley    Car    Works    A    Mfjj.    Co.    i. 

Cooper,  619. 
Bristol  A  Kxeter  Uy.  v.  ColUns.  389. 
Britton  V.  Atlanta,  etc.,  Ky.  Co.,  207. 
Uritloii  r.  NifholU,  4i;{. 
Broadwcll  r.  City  of  Kan>4aH,  302. 
Hroadwell  v.  SwlRcrt,  4'.>l,  512. 
Brock  f.  Connecticut,  etc.,  K.  Co.,  llfi. 
Brock  f.  Calc,  405. 
Brockley  v.  Itrocklev,  437. 
Bronilcv  v.  Hlrmlnniiani  .M.  K.  Co.,  470. 
BrouNon  r.  Collin,  KCt,  110. 
BronHoii  c.  l.abroi,  77. 
Bron.son  v.  honthlnirK,  143,  514. 
Brooks  f.  Boston,  etc.,  U.  Co.,  379. 
Brook  I-.  Copeland,  l:U. 
Brooks  r.  Hannibal*  St.  J.  R.  Co., 24,405. 
Brooks  r.  KhiRS  Co.  Kl.  U.  Co., 531. 
Brooks  r.  Schiierin,  (>4. 
Brooks  c.  Taylor,  1J7. 
Bkoo.m'.s  Keo.vi,  Maxims,  26. 
Broschart  r.  Tuttlc,  401. 
Brosnan  i-.  Sweetscr,  280. 
Brougliton  r.  Mid.  G.  W.  of  Ireland  Co., 

294. 
Broussean  v.  The  Hudson,  337. 
Brown  v.  Accnnglon  Cotton  Co.,  215. 
Brown  r.  Barnes,  .'i79. 
Brown  r.  I'.ullalo,  etc.,  R.  Co.,  550. 
Brown  r.  Brooks,  4JS9. 
Brown  r.  Butterley  Coal  Co.,  229. 
Brown  c.  Cam<len,  etc  ,  K.  Co.,  350. 
Brown  v.  Central  P.  K.  Co.,  49. 
Brown  i-.  Collin,  110. 
Brown  i-.  Congress,  etc.,  St.  R.  Co.,  1. 
Brown  r.  Chicago,  etc.,  11.   Co.,    42,    43, 

377,  37;»,  3S1. 
Brown  r.  Davis,  58. 
Brown  v.  Eastern  R.  Co.,  365. 
Brown  v.  Kuropcan,  etc.,  R.  Co.,  .'il4. 
Brown  r.  llannihal,  etc.,  R.  Co.,73,5i'8. 
Brown  c.  Iluis,  92,  98. 
Brown  r.  Laurens  County,  35. 
Brown  r.  Lester,  452. 
Brown  v.  Lynn,  40J,  478. 
Brown  v.  Manchester  &  Shcflleld  Ry.  Co., 

343. 
Brown  r.  Marshall,  39. 
Brown  f.  Mcl.eisli,  215. 
Brown  r.  M.  S.  &  L.  Ry.  Co.,343. 
Brown  v.  New  York,  etc.,  R.  Co.,  509. 
Brown  v.  I'urdv,  423. 
Brown  v.  Scarboro,  463. 
Brown  r.  Sullivan,  400.  489,  693. 
Brown  v.  Texas  &  1'.  Ry.  Co.,  502. 
Brown  r.  Wabash,  St.  L.  ctc.R.  Co.,  30. 
Brown  i:  Winona  &  L.  W.  R.  Co.,  93. 
Brown  r.  Werner,  8. 
Bkownk  onCaukieus,  29. 
Browning  r.  innenhousc,  4.54. 
Browning  r.  Tory  Ihland  R.  Co.,  349. 
Brownlee  i-.  Alexl.x,  3I'.t. 
Brownlow  r.  Met.  Board,  140. 
Bruce  v.  Baxter,  4-'9. 
Bruce  r.  Cincinnati  R.  Co. ,.538. 
Bruce'8  Admr.  r.  Railroad  Co.,  555. 
Bruckcr  r.  Town  of  Covington,  315. 
Brunkcr  v.  Cununins,  100. 
Brumbaugh  t'.  Borough  of  Bedford,  306. 
BrunibriUge  r.  Masscy,  438. 
Bruno  v.  Brooklyn  City  R.  Co.,  52,377. 
Brunsden  v.  Humphrey, 304. 
Mrnnson  v.  Martin,  548. 
Brau.swlck  v.  White,  286. 


BrusM)  f.  BulTalo,  141,  218.  819. 
Bryan  r.  Memphis,  etc.,  R.  Co.,  S61. 
l;r>  an  r.  Missouri  Tao.  R.  Co.,  386. 
Bryans  r.  Taylor,  433. 
Bryant  r.  BIddoford,  481. 
Bryiner  f.  Southern  I'ac.  Co.,  624. 
Kryno  r.  Boadio,  212. 
Buchanan  r.  West  Jersey  IL  Co.,  39. 
Ituchanan  r.  Barre,  307. 
Buchanan  t-.  City  of  Duluth,  300. 
Ilucder  r.  Cheshire  R.  Co.,  40,  481. 
Mucher  r.  FUchburg  R.  Co.,  40. 
Buciier  r.  New  Vork  Cent.,  etc.,  U.  Co., 

54.  380. 
Buck  f.  Biddiford,  318. 
Bucki  f.  Cone,  216. 
Buckinghain  v.  Fisher,  2S1. 
Buckland  r.  Adnms  Lxpress  Co.,  346. 
lluckley  f.  Cliy  of  New  Bedfonl,  304. 
Buckley  v.  Great  Western  R.  Co.,  340. 
Buckman  v.  Allwood,  43;!. 
Budd  !•.  I'nited  (^arriage  Co.,  486. 
Bud<llngton  r.  Shearer,  13:{. 
Buel  i\  New  Vork,  etc.,  R.  Co.,  4.S5,  486. 
Butfuin  V.  Harris,  93. 
Bahrens  v.  Dry  Dock,  etc.,  Rv.  Co.,  48;». 
Bulklcy  r.  N.  V.,  etc.,  R.  Co..  112. 
Bulllngton   v.  Newport  News  A  M.  V. 

Co.,  5'.>0. 
Bulinan  v.  Fnrncss  Ry.  Co.,3. 
Huncli  v.  Kdenton,  317. 
IJuuker  v.  .Midland  Ky.  Co.,  233. 
ISunni'll  r.  Stern,  00. 
Bunting  i:  Central  PaclflcCo.,  390, 
Bunting  r.  Hogseti.  32,  .5«9. 
Bunyea  r.  Metropolitan  R.  Co.,  646. 
Uurchell  c.  HIcklsson,  74. 
Burdick  r.  (."headle,  103,  106. 
Burford  f.  Grand  Rapids,  300. 
Burger  r.  St.  Louis,  etc.,  R.  Co.,  202. 
Burgess  i-.  Clements,  413. 
Burgess  r.  (i  ray,  219. 
Burgin  r.  Ulclimond,  &  D.  R.  Co.,  380. 
Iturk  r.  Dempster,  59. 
Burke  v.  New  York,  etc.,  R.  Co., 601. 
Burke  f.  S    E.  Uv.  Co.,  367. 
Burke  f.  Shaw,  202. 
Burke  i-.  Wethcrbee,  497. 
Burgeolu  i:  New  Vork  C.  A,  II.  R.  Co., 

3t'.0. 
Biirgnert*.  Ilumphrcv,  9. 
Burliam  r.  Slralher,  129. 
Burkhardt  r.  Ilanlev,8. 
Burlington  A  C.  H.  Co.  v,  Llcho,  494. 
Burlington,  etc.,  IC.  Co.  v.    ijhoeuiakcr, 

118. 
Burlington,  etc.,  R.  Co.  r.  Webb,  119. 
Biirlinxton,  etc.,  I£.  Co.  r.  Weslover.  87. 
Burncll  f.  New  Vork,  etc.,  R.  <;o  ,  iJOti. 
Burnham  v.  Stevens,  449,  450,  451. 
liiiinh.'iin  r.  Wabash  W.  Ky.  Co  ,  ;C»4. 
Hums  r.  Hellefontaino  R.  Co.  377. 
Burns  r.  I'.radford,  319. 
Burns  i'.  North  Chicago  Rolling  Mill  Co., 

505. 
Burns  r.  Pcthcal,252. 
Barren  Tp,  i-.l'ncaphor,  38. 
Burrlll  r.  Shell,  2<a. 
Burritt  r.  New  Haven,  144. 
BurrouKhs  v.  Erie  R.  Co.,  54. 
Burroughs  c.  Railroad  Co..  360, 
Burroughs  i-.  Saterlee,  &  97. 
Burrows  r.  Triebcr,  411. 
Burrows  t-.  Match  Gas  Co.,  37,  29,  469. 


,612 


TABLE    OF    CITATIONS. 


References  are  to  Pages. 


Burton  v.  Wilmington  R.  Co.,  551. 

Burton  v.  Henry,  591. 

Bueschlng  v.  St.  Louis  Gas   Light    Co., 

82,  470,  471. 
Busby  V.  Holthaus,  6. 
Bush  V.  City  of  Portland,  94. 
Bush  V.  i>teinman,  224. 
Butcher  v.  L.  &  S.  W.  Ry.  Co.,  363. 
Butcher  v.  Providence  Gas  Co.,  289, 290. 
Butler  V.  Butler,  262. 
Butler  V.  Hearne,  342. 
Butler  V.  Hunter,  214,  221. 
Butler  V.  Knight,  435. 
Butler  V.  Oxford,  319. 
Butler  V.  Peck,  93. 
Butler  V.  Pittsburg  &  B.  St.  Ry.  Co.,  53, 

378. 
Butler  V.  St.  Paul  &  D.  R.  Co.,  483. 
Butler  V.  Village  of  Edgewater,  303,  305. 
Butt  V.  Wood,  324. 

Butterfleld  v.  Forrester,  460,  461,  477. 
Butterlield  v.  Western  R.  Co.,  50. 
Button  V.  Frink,  473. 
Button  V.  Hudson  River  Co.,  462. 
Buxenden  v.  Sharpe,  282. 
Buxton  V.  N.  E.  Ry.  Co.,  110, 139,  382. 
Buzzell  V.  Mnfg.  Co.,  493,  494. 
Byrne  v.  Boadle,  63,  71,  275,  276,  522,  529. 
Bryne  v.  N.  Y.  Central  Ry.,  513,  519. 


c. 


Cadogan  v.  Essex,  263. 

Caffrey  v.  Darby,  257. 

Cahill  V.  Cincinnati,  etc.,  Ey.  Co.,  51,499, 

508. 
Cahill  V.  Eastman,  92,  275. 
Cahill  V.  Layton,  75. 
Cahill  V.  L.  &  N.  W.  Ry.  Co.,  362. 
Cahn  V.  W.  U.  Tel.  Co.,  592. 
Cain  V.  Syracuse,  139. 
Cairncross  v.  Village  of  Pewaukee,  142. 
Cairo,  etc.,  R.  Co.  v.  Stevens,  93,  95. 
Cairo,  etc.,  R.  Co.  v.  Warrington,  123. 
Calder  v.  Smalley,  82,  309,  310. 
Calderv.  Walla  Walla,  311. 
Caldon  v.  Chicago,  etc.,  Ry.  Co.,  114. 
Caldwell  v.  Brown,  552. 
Caldwell  v.  Hall,  59. 
Calkins  v.  City  of  Hartford,  321. 
Callahan  r.  Eel  River  &  E.  R.  Co.,  78. 
Callahan  v.  Sharp,  513. 
Callahan  v.  Warne,  460. 
Calvin  V.  Parker,  133. 
Calvin  V.  Peabody,  286. 
Camden,  etc.,  R.  Co.  v.  Bausch,  .385. 
Camden,  etc.,  R.  Co.  v.  Beiknap,  'i65. 
Camden,  etc.,  R.  Co.  v.  IJurke,  393. 
Camden,  etc.,  R.  Co.  v.  Hoosey,  376. 
Cameron  v.  Bryan,  127. 
Cameron  v.  White,  592. 
Camp  V.  Carlisle  Deposit  Bank,  59. 
Camp  V.  Hartford,  etc..  Steamboat  Co., 

344. 
Camp  V.  W.  U.  Tel.  Co.,  594. 
Camp  V.  Wood,  62,  73, 104,  267. 
Cami'Bell,  on  Xegligenck,  20,  21,  22, 

S7, 58.  72,  274,  275,  277,  294, 448,  506. 
C/VMI'UKI,L'8  FRASEU'S  LaW  OF  MASTER 

AND  bKUVANT,  232. 

Campbell  v.  Atlanta,  etc.,  R.  Co.,  470. 
Campbell  v.  Boyd,  278. 


Campbell  v.  Bagley,  433. 

Campbell  v.  Brown,  126, 127. 

Campbell  v.  Campbell,  265. 

Campbell  v.  Fisher,  596. 

Campbell  v.  Harris,  599. 

Campbell  v.  Kincaid,  435. 

Campbell  v.  McCoy,  46L 

Campbell  v.  Portland  Sugar  Co.,  72. 

Campbell  v.  Rodgers,  555. 

Campbell  v.  Trimble,  214. 

Campbell  v.  Wing,  595. 

Campkin  v.  Barton,  265. 

Canadian,  etc.,  Ry.  Co.  v.  Challfaux,  375. 

Canavan  v.  Stuyvesant,  107. 

Candee  v.  Railroad  Co.,  366. 

Candee  v.  AV'estern  Union,  etc.,  Tel.  Co., 

592,  693. 
Candiflf  V.  Louisville,  etc.,  Ry.  Co.,  201. 
Canefox  v.  Crenshaw.  126. 
Canfleld  v.  Andrews,  97. 
Canfleld  v.  Baltimore,  etc.,  R.  Co.,  385. 
Canilf  V.  Blanchard  >av.  Co.,  77. 
Canley  v.  Pittsburgh  Ry.  Co., 513. 
Cann  v.  Cann,  258. 
Cannavan  v.  Conkling,  107. 
Canning  v.  Williamsiown,  596. 
Cannon  v.  Louisville,  etc.,  K.  Co.,  112. 
Cannon  River  Mfgrs.  Assoc,  v.  First  Nat. 

Bank,  59. 
Cantwell  v.  Appleton,  320. 
Capehart  v.  Seaboard,  etc.,  R.  Co.,  348. 
Card  V.  Ellsworth,  143. 
Carey  v.  Chicago,  etc.,  R.  Co.,  120. 
Carhart  v.  Auburn  Gas  Light  Co.,  92. 
Carleton  v.  Franconia,  etc.,  Iron  Co.,  62, 

73. 
Carlin  v.  Chappel,  9. 
Carlisle  Bank  v.  Graham,  440. 
Carlisle  v.  Sheldon,  512. 
Carlson  v.  Oregon,  etc.,  Ry.  Co.,  543. 
Carlyon  v.  Fitzhenny,  59. 
Carmon  v.  Railroad  Co.,  292. 
Carney  v.  Village  of  Marseilles,  137. 
Carpenter  v.  City  of  Cohoes,  145. 
Cashill  I?.  Wright,  413. 
Carpenter  v.  Boston,  etc.,  R.  Co.,  396,  398. 
Carpenter  v.  Carpenter,  259. 
Carpenter  v,  Latto,  283. 
Carpenter  r.  Mexican  Nat.  R.  Co.,5ii5. 
Carpenter  v.  New  York,  etc.,  R.  Co.,  404, 

409. 
Carqne  v.  London,  etc.,  R.  Co.,  .523, 532. 
Carr  ^^  Eel  River  &  K.  R.  Co.,  54,  ;i79. 
Carr  v.  Lancashire  &  York  Ry.  Co.,  343. 
Carrico  v.  West  Va.,  etc.,  Ry.  Co., 53, 224, 

462, 466. 
Carriger  v.  East  Tennessee,  etc.,  E.  Co., 

95. 
Carrington  v.  Ficklln,  59. 
Carrington  v.  Louisville  &  N.  R.  Co.,  468, 

478. 
Carrlthers  v.  Cox,  53S. 
Carroll  v.  Interstate  R.  T.  Co.,  376,383. 
Carroll  v.  N.  Y.,  etc.,  R.  Co.,  381. 
Carroll  v.  Pennsylvania  Coal  Co.,  494. 
Carroll  V.  Peiiii.  R.  C'o.,51. 
Carroll  v.  Statcn  Island  R.  Co.,  373,  374, 

480. 
Carsi  v.  Marctzk,  424. 
Carskaddon  r.  Mills,  73. 
Carson  v.  City  of  Green  Bay.  35. 
Carson  v.  Federal,  etc..  By.  Co.,  499. 
Carson  v.  Godley,  103. 
Carter  v.  Berlin  Mills,  216. 


TAIU.E    OF    CITATIONS. 


613 


Keferciiccs  arc  to  Ta^oH. 


Carter  ».  rhnmbors,  40. 

Curler  f.  ('oluinbla,  elc,  U.  Co.,  471. 

Curler  v.  Drvmlule,  25<). 

(itrlor  V.  KiiMKHrt  City  Cablo  Kv.  Co.,  527. 

Ciirtor  r.  I.oul.-'Vlllo,  i>tc..  Ky.  I'o.,  20-1. 

Carter r.  Town  of  Moiillci'lio.S'iO. 

Carter  r.  Townc,  37,  2S7,  .'<17. 

Case  f.  Cleveland,  etc.,  Ky.  Co.,  354. 

Case  f.  St.  LouIm,  etc.,  li'i. 

OaMenieiit  v.  ISrowii,  2i8. 

Cass  f.  Uosloii  K.  H.  Co.,  24. 

CasMidy  f.  AiiKell,  471. 

Caxtulla     I'rout    Club   Co.    v.    Castalia 

SporlliiK  Clul),97. 
Caatle  r.  Diirjeil,  2,-<(>,  450. 
Castner  f.  UieKcl,  10<(. 
Caswell  r.  Worth,  4'.iti. 
Catclipole  f.  Ainbcrgalo  Ry.  Co.,  333. 
Callolt  r.  Vouiijr.  4t's'>. 
Catron  r.  Nichols,  85. 
Culterllngf.  Frankfort,  308. 
Cattle  f.  .Stockton  Walerworke  Co.,  34. 
Catllln  V.  Hills,  .Mk;. 

CavanauKh  r.  ocean  Steam  Nav.  Co. ,555. 
Cavllland  r.  Vale,  429. 
Cayle's  Case,  41«i,  -114. 
C'K.NTKAL  Law  Jl.  (abst.),  24,  78,  93, 143, 

207,  208.  21."). 
Central  Nat.  Hank  v.  Gallagher,  455. 
Central,  etc.,  It.  Co.  v.  Aliaway,  48:j. 
Central,  etc.,  U.  Co.  v.  Hrldger,  361. 
Central,  etc.,  K.  Co.  r.  Hrinson,  51. 
Central,  etc.,  It.  Co.  v.  Coombs,  366. 
Central,  eic.  It.  Co.  v.  Dixon,  52. 
Central,  etc.,  K.  Co.  v.  Dwlght  Mfg.  Co., 

34C. 
Central,  etc.,  R.  Co.  r.  Feller,  502. 
Central,  etc.,  11.  Co.  v.  Georgia  F.  and 

V.  E.xchange,  361. 
Central,  elc.  It.  Co.  r.  Harrison,  47S. 
Central,  etc..  It.  Co.  v.  lla.Hselkiis,  346. 
Central,  etc.,  K.  Co.  f.  Lelchcr,  379. 
Ceulral,  eic,  U.  Co.  f.  -Moore,  541. 
Central,  etc.,  U.  Co.  v.  Newman,  464. 
Central,  etc..  It.  Co.  v.  I'assmore,  372. 
Central,  etc., It.  Co.  f.  I'enna.  It.  Co.,  144. 
Central,  etc..  It.  Co.  i'.  I'hlnazee,  503. 
Central,  etc.,  It.  Co.  v.  ltou.se,  551. 
Central,  elc.  It.  Co.  r,  banders,  527. 
Central,  etc.,  It    Co.  r.sralth,  355,376,491. 
Central,  etc..  It.  Co.  v.  Thompson,  btri. 
Central  I'ass.  Ity.  Co.  t'.  Itose,  40,  376. 
Central    Trust  Co.  v.  Wabash  Ky.  Co., 

96,  304,  3t;6,  503,  013. 
Central  Vermont  It.  Co.  v.  Soper,  349. 
Cesar  r.  Karutz,  lOS. 
Chaddock  f.  IMummor,  60. 
Cliudwick  t'.  Trower,  69. 
Chaffee  v.  Boston,  etc.,  It.  Co.,  501,  505. 
Chain  f.  Hart,  432. 
Chalk  r.  McNally,97. 
Chalkleyi".  City  of  Richmond,  301. 
Chamberlain  v.  Masterson,  411,412. 
Chamberlain  v.  Oc-hkosli,  311. 
Chamberlain  v.  West,  410. 
Chamberlin  v.  Porter,  42t). 
Champion  i:  Town  ef  Crandon,  04,  304. 
Chanillerr.  I'.acon,  333. 
Chanvet  v.  Hill,  06. 
Chaplin  I'.  Hawse,  526. 
Chapman  v.  Chicago,  etc.,  11.  Co.,  5D0. 
Chapman  v.  Ewles,  433. 
Chapman  v.  G.  W.  R.  Co.,  334. 
Chnpniau  v.  Milton,  314. 


Chapman   v.   .Sew    Ilavcn,  etc.,  R.  Co.. 

50S,  5(10. 
Chapman  r.  Koihwell,  71,  280. 
C'harUbois  r.  Gogebic  A  M.  R.  Co.,  215. 
CliarlesH  v.  Itankln,  7. 
Charles  r.  Tavlor,  221. 
Charley  v.  Ho'lcot,  420,  42'2. 
Cliartlers  v.  Langilon,  :jo«. 
Charliers  Valley  (Jas  Co.  r.  Lynch,  218. 
(-'liarller.H  Vallev  <ia«  <,'o.  r.  Waters,  215. 
Chase  r.  City  of  Lowell,  3U5,  320. 
Chase  f.  Cleveland,  311. 
Chase  r.  Maine  C.  It.  Co.,  5o»>. 
Chase  f.  New  York  Central  Ry.  Co.,  491, 

402. 
Chase  r.  Sllverstono,  07. 
Cliatal;,'ne  r.  lUirgcson,  280. 
Chatll.l.l  f.  WIU(.n,07. 
Chattanooga  It.  AC.  R.  Co.  r.  Brown,  118. 
Cliatianooga  It.  A  C.  R.  Co.  r.  ClowdU, 

652 
Chaitanooga  R.  A  C.  R,  Co.  r.  Iluggtna 

4fi5. 
Chattanooga  It.  A  C.  R.  Co.  r.  LIddcll. 

SSit. 
Chautauqua  Lake  Ice  Co.  r.  McLucky, 

4S8. 
Cheetham  f.  Hampson,  101.  lOi,  109. 
Cheney  r.  Uussell,  I'.'S. 
Chenowith  r.  Chamberlin,  4>V2. 
Cherokee   &  V.  Coal  &  M.  Co.  r.  Limb, 

544. 
Cheeves  r.  Danielly,  07. 
Chicago  t".  Derinody,  210. 
(  hlcago  f.  Klzcman,  .'lOO. 
Chicago  f.  Harwo<id,542. 
Chicago  r.  Hay,  50"j. 
( 'hlcago  f.  Heslng,  614. 
Chlcano  f.  IIov.  142. 
Chicago  f.  Kcilv,  .^tS. 
Chicago  f.  Langlass,  306,  595. 
Chicago  f.  .McCulloch,  554. 
Chicago  r.  McGlven,  311. 
Chicago  r.  O'llrcnnan,  105,  595. 
(^hlaigo  r.  O'Brien,  311. 
Chlc^igo  f.  Robins,  140,  219,  275. 
Chicago  t'.  Schmidt,  323. 
Chicago  r.  Scholten,  543,  .Vi2,  .V^l. 
Chicago  Drop  F.  A  F.  Co.,  r.  Van  Dam, 

494. 
Chicago,  etc.,  R.  Co.  r.  Abbott.  112. 
Chicago,  etc.,  K.  Co.  r.  Abels,  144, :tV2,S5S, 
Chicago,  etc..  It.  Co.  v.  Addtzout,  ;u;7. 
Chicago,  etc.,  It.  Co.  f.  Arbaiigli,  .'>00. 
Chicago,  etc.,  It.  Co.  r.  Asl.ury,  4'."3. 
Chicago,  etc  ,  It.  Co.  v.  Barms,  h5.  690. 
Chicago,  etc..  It.  Co.  r.  Becker,  4.'C),  534. 
Chicago,  etc.,  K.  t.'o.  v.  Behney,  114. 
Chicago,  etc.,  It.  Co.  v.  Bell.  .VO. 
Chicago,  etc.,  R.  Co.  f.  Bockovcn,  619. 
Chicago,  etc..  It.  Co.  r.  Brangan,  119,  544. 
Chicago,  etc..  It.  Vo.  v.  Brown,  VVi. 
Chicago,  etc..  It.  Co.  r.  Bryan,  2<>4. 
Chicago,  etc..  It.  Co.  r.  Campbell,  113. 
Chicago,  etc..  It.  Co.  r.  Carpentt-r,  388. 
Chicago,  etc..  It.  Co.  r.  Casey,  201. 
Chicago,  etc.,  R.  Co.  v.  Chambers,  461, 

460. 
Chicago,   etc.,  R.  Co.  r.  Chapman,  24, 

344. 
Chicago,  etc.,  R.  Co.  r.  Clongh.  305. 
Chicago,  etc.,  R.  Co.  r.  Coss,  42. 
Chicago,  etc.,  R.  Co.  r.  Dclcourt,  378. 
Chicago,  etc..  It.  Co.  r.  Dcs  Laurtcrs,  464. 


614 


TABLE    OF    CITATIONS. 


References  are  to  Pages. 


Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 

596. 
Chicago 

543. 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 

114, 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago, 
Chicago 
Clilcago 
Chicago 
Chicago. 
Chicago 
Chicago 
Chicago 

554. 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 
Chicago 


Chica 

Chlca 

Chic 

Chic 

Chi 

515 
Oh 


go 

I  go 

ago 

igo 

cago 


.....icago 
Chicago, 
Chicago, 

613. 
Chicago 
Chicago, 
Chicago 


etc.,  R.  Co.  V.  Dewev,  52. 
etc.,  R.  Co.  V.  Dickson,  206. 
etc.,  R.  Co.  V.  Dimlck,  460,  464. 
etc.,  R.  Co.  V.  Dam.ser,  114. 
etc.,  R.  Co.  V.  Dunleavy,  4'i4. 
etc.,  K,  Co.  V.  Eichman,  373. 
etc.,  R.  Co.  V.  Elliott,  35. 
etc.,  R.  Co.  V.  Epperson.  202. 
etc.,  R.  Co.  V.  Fahey,  3b6. 
etc.,  R.  Co.  V.  Ferguson,  205. 
etc.,  R.  Co.  V.  Fletsam,  464. 
etc.,  R.  Co.  V.  Fisher,  501,   505, 

etc.,  R.  Co.  V,  Fitzsimmons,  499, 


etc. 
etc. 
etc. 
etc. 
etc. 
etc. 
etc. 
etc. 
etc. 
etc. 
etc. 
etc. 
etc. 
etc, 
etc. 
etc. 
etc. 

etc. 
etc. 
etc., 
etc. 
etc. 
etc. 
etc., 
etc., 
etc. 
etc, 
etc. 
etc. 
etc. 
etc. 
etc. 

etc., 
etc., 
etc., 
etc., 
etc., 
etc., 
etc., 
etc., 
etc., 
etc., 
etc., 
etc., 
etc., 
etc., 
etc., 
etc., 
etc. 


R.  Co. 
R.  Co. 
R.  Co. 
R.  Co. 
R.  Co. 
R.  Co. 
R.  Co. 
R.  Co. 
R.  Co. 
R.  Co. 
R.  Co. 
R.  Co. 
R.  Co. 
R.  Co. 
R.  Co. 
R.  Co. 
R.  Co. 


V.  Flexman.  207. 
V.  Gilbert,  87,  89. 
V.  Gillam,  54-2. 
V.  Glenney,  94. 
V.  Goebel,  478. 
V.  Goyette,  86,  88. 
V.  Grablin,  520. 
V.  Haas,  113,  114. 
V.  Harney,  518. 
V.  Hawk,  385. 
V.  Hines,  473. 
V.  Hitt,  697. 
V.  Hogan,  113. 
V.  Houston,  500. 
V.  Howard,  541. 
V.  Hunt,  86. 
V.  Hutchinson,  51, 


,  R.  Co 
,  R.  Cd 

R.  Co. 
,  R.  Co 
,  R.  Co 
,  R.  Co 

R  Co, 

R.  Co. 
,  R.  Co, 

R.  Co. 

R.  Co. 

R.  Co. 
,  R.  Co. 

R.  Co. 

R.  Co. 


.  V.  James,  113. 

,  V.  Janett,  122. 

V.  Johnson,  464. 

.  V.  Kellam,  111. 

.  V.  Kern,  89. 

.  r.  Koehler,  53,  375. 

V.  Lane,  500. 

V.  Lee,  502. 

,  V.  Lewis,  373,  374. 

V.  Logue,  547. 

V.  Magee,  116. 

V.  Manning,  337. 

V.  Metcalf,  .WO. 

V.  Mogk,  212. 

V.  Moranda,  541, 653, 


R.  Co.  V. 
R.  Co.  V. 
R.  Co.  V. 
R.  Co.  V. 
R.  Co.  V. 
R.  Co.  V. 
R.  Co.  V. 
R.  Co.  V. 
R.  Co.  v. 
R.  Co.  V. 
R.  Co.  V. 
R.  Co.  V. 
R.  Co.  V. 
R.  Co.  V. 
R.  Co.  V. 
R.  Co.,  V 
,  B.  Co. 


Murphy,  480. 
Murray,  503. 
McCah"ill,88. 
McCool,  340. 
McGinn,  144. 
McLean,  504. 
Ostrander.  80. 
Patchln,  52S. 
Pennell,86,90,91. 
People,  339. 
Pondrom,53,  378. 
Prescott,  27,  506. 
Qaintance,  80. 
Randolph,  375. 
Rfce,  113. 
.  Roberts,  479. 
V.  Robinson.  390, 


etc.,  K.  Co.  V.  Ryan,  518. 
etc.,  R.  Co.  V.  Scates,  375. 
etc.,  R.  Co.  V.  Schmirlowsky, 

etc.,  R.  Co.  V.  Scott,  340. 
etc.,  R.  Co.,  V.  Sims,  119. 
etc.,  R.  Co.  V.  Smith,  89,  513. 


Chicago,  etc.,  R.  Co.  v.  Spllker,  483,512. 
Chicago,  etc.,  R.  Co.  v.  Steck,  93. 
Chicago,  etc.,  R.  Co.  v.  Sweet,  543. 
Chicago,  etc.,  R.  Co.  v.  Travis,  494,554. 
Chicago,  etc.,  B.  Co.  v.  Ulley,  109. 
Chicago,  etc.,  R.  Co.  v.  Warner,  464. 
Chicago,  etc.,  R.  Co.  v.  W<  st,  204. 
Chicago,  etc.,  R.  Co.  v.  Wilcox,  513  514. 
Chicago,  etc.,  R.  Co.  v.  Williams,  45. 
Chicago,  etc..  R.  Co.  v.  Wilson,  51,  390, 

499    553. 
Chicago,  etc.,  R.  Co.  v.  Witty,  352. 
Chickering  i\  Robinson,  450,  451. 
Chidseyr.  Canton,  135. 
Child  V.  Boston,  295. 
Child  V.  Hearn,  507. 
Childrey  v.  City  of  Hantington,  35. 
Chllds  V.  Drake,  286. 
Childs  V.  Hearn,  132. 
Chiles  17.  Garrison,  265. 
Chilton  V.  Union  Pac.  Rv.  Co.,  554. 
ChiBholm  v.  Northern  Pac.  R.  Co.,  117. 
Chope  V.  City  of  Eureka,  137. 
Christian  v.  Columbus  &  R.  Ry.  Co.,  201, 

654. 
Christian  v.  Erwin,  464. 
Christian  v.  Illinois  Cent.    R.    Co.,  462, 

465,  485. 
Christian  v.  St.  Paul,  etc.,  R.  Co.,  349. 
Christie  v.  Griggs.  367,  393,  523. 
Christie  i\  Sawyer,  437. 
Christopher  v.  Van  Liew,  451. 
Chrocheron  v.  N.  S.  S.  I.  F.  Co.,  398. 
Chrystal  v.  Troy  &  B.  R.  Co.,  514. 
Church  V.  Man.sfied,  209. 
Churchill  v.  Hulbert,  80. 
Churchman  v.  Kansas  City,  596. 
Churnot  v.  Larson,  110,  125. 
Cincinnati  v.  Stone,  216. 
Cincinnati,  etc.,  R.  Co.  v.  Adams,  5,38. 
Cincinnati,  etc.,  R.  Co.  v.  Barker,  28,  89. 
Cincinnati,  etc.,   R.  Co.  v.  Butler,  472, 

502,  501,  505. 
Cincinnati,  etc.,  R.  Co.  v.  Carper,  3S0 
Cincinnati,  etc.,  R.  Co.  v.  Claire,  48it. 
Cincinnati,  etc.,  R.  Co.  r.  Dufraln,  379. 
Cincinnati,  etc.,  R.  Co.  v.  EMuton,  41. 
Cincinnati,  etc..  11.  Co.  v.  Uildreth.  112, 

119. 
Cincinnati,  etc.,  R.  Co.  v.  TTnward,  499. 
Cincinnati,  etc  ,  R.  Co.  v.  Ka-sen,  40. 
Cincinnati,  etc.,  11.  Co.  v.  .McMnllf-n,  556. 
Cincinnati,   etc.,  R.  Co.   v.  Nollhenlue, 

473. 
Cincinnati,  etc.  R.  Co.  v.  I'rewitt,  538. 
Cincinnati,  etc.,  R.  Co.  v.  Smith,  112. 
Cincinnati,  etc.,  R.  Co.  v.  Smock,  86. 
Cincinnati,  etc.,  R.  Co.  v.  Stanley,  472. 
Cincinnati,  etc.,  R.  Co.  v.  Wood,  115. 
Circlevllle  v.  Nendlng,  141,  219,  292. 
Citizens  Bank  v.  Howell,  443. 
Citizens  Bid.,  etc.,  Ass.  v.  Corlell.  324, 

325,  326. 
Citizens  lyoan  Ass.  v.  Lyon,  325. 
Citizens  St.  Ry.  Co.  v.  Spahr,  376. 
Citizens'  St.  R.  Co.  v.  Stoddard,  520. 
Citizens'  St.  Ry.  Co.  v.  Twlname,  480. 
City  Council  of  Augusta  v.  Hudson,  299, 

470. 
City  Council  of  Montgomery  v.  Wright, 

315. 
City  Ry.  Co.  V.  Lee,  377. 
City  of  Abilene  v.  Cowperthwslt,  iu, 

319. 


TAULi;    (tl'    CITATIONS. 


(;i5 


n«'iVrtMU'rs  ure  to  Pages. 


CItv  of  AbliiK'Jon  f.  M(i;ri'\v,  i::t. 

Cliy  of  Albniiy    r.  Wiilerrolllor  T.  \  U. 

Co.,  :v>. 
City  of  Altoona  v.  Lotz,  :J1S. 
Ctty  of  Alclilson  v.  Uosn,  ;i.'2,  f.Oi. 
(;ily  of  Atlanta  r.  Iliu'liaiinn,  Ml. 
City  of  Atlanta  r.  Martin,  307. 
City  of  Atlanta  c.  WilHon.  :i.i. 
City  of  All.- tin  r    Ultz,'2.:ilS. 
(Mty  of  Ht-anlstown  r.  Smith,  404. 
City  of  Hlrniink;l)ani  r.  Lewis,  ilS.  S'.Hi. 
City  of  Birniln<.;hani  f.  MfCray,  iW. 
Cit'yof  Hloonilncton  r.  ClianibiTlain,;!!'.). 
City  of  BlooininKton  f.  Lcj.'ir.  :5-l. 
City  of  Honh.ini  r.  (^rldcr,  320. 
City  of  Uoftion  r.  Crowlcv,  144. 
(."itv  of  Untfalo  r.  Clomeht,  222. 
City  of  CiMiiralla  v.  Kronso,  M.i. 
City  of  ChaniiialKn  r.  Forrester,  .10.S. 
CItV  of  Cliainpaijrn  t'.  Jones,  :Ul,4r.4. 
CIlV  of  Chlcutro  V.  HiRsby  313. 
Cltvof  ChicMRO  r.  Chano,  30i>. 
City  of  ChlraK'O  r.  Karrell,  31S. 
City  of  Chlcairo  c.  Martin,  308. 
City  of  Chlc.-iifo  r.  McLean,  .VJ6. 
City  of  Chicago  i-.  Powers,  321. 
City  of  ChlcaK'o  r.  Starr,  .'■.2L 
City  of  Chlea>ro  r.  Steams.  464. 
Clivof  ColuuibuB  V.  Strasaner,  314,  321, 

472. 
City  of  Covlnpton  v.  Gevlor,  8. 
City  of  Crawfordaville  r.  Hond,  'Mi. 
City  of  Crawfordaville  r.  Smith,  33. 
City  of  Delphi  v.  Lowerv,  321. 
City  of  Denlson  v.  Sanford,  314. 
City  of  Denver  r.  Capelll,  304. 
Cliy  of  Denver  r.  Deano,  320. 
City  of  Denver  v.  Dunsmore,  144. 
City  of  Denver  ?•.  Khod03,95. 
City  of  Denver  v.  Solomon,  lO.'j. 
City  of  Kno  r.  McCJlll,  310. 
City  of  Knreka  r.  Merrlfleld,  .^l"). 
City  of  Kvansvlllc  c.  Decker,  94,  95,  304. 
City  of  Kolora  r.  Nancv,  308,  314. 
City  of  Fort  Wavne  f.  breese,  314. 
City  of  Ft.  Wavner.  Dnryee,319. 
City  of  Ft.  Wavnc  r.  Patterson.  310. 
City  of  Ft.  Worth  r.  Johnson.  314,  3-M. 
City  of  Friend  r.  InRiTSoll,  .V.)5. 
City  of  Froetbarpf.  Diiffv,30.5. 
City  of  GalesburK  r.  Benedict,  464. 
City  of  Galveston  r.  Smith,  317. 
City  of  Goshen  v.  Mvers,  144. 
City  of  Greeneboroujrh  r.  Mr(;ibbony,595. 
City  of  Grlllin  r.  Johnson.  319. 
City  of  Jlorton  r.  TroinpcfT,  4.«0. 
CItvof  Irontonr.  Kellov,  141,218. 
City  of  Jollet  r.  Blower',  'M)\. 
CItyof  Jolletf.  Ilarwood,  3a5. 
City  of  Joliet  f.  Mefrane>-,307,318. 
City  o<  Joliet  v.  Seward,  30."). 
City  of  Kansas  v.  Mannlnir,  317. 
City  of  Kearney  r.  Thoemason,  3'>2. 
City  of  Keokuk  i'.  Independent  District 

of  Keokuk,  309,310. 
City  of  Kinsley  r.  .Morse,  314. 
City  of  La  Favette  »•.  Larson.  .321. 
City  of  Lafavitie  r.  Nagle,  .302. 
City  of  Lafayette  r.  Hose.  306, 
City  ..f  Lafavette  r.  Tlinberlake,  306. 
City  of  Lanark  v.  Douichertv,  4t!5. 
City  of  Lancaster  v.  Klasinsrer,  36. 
City  of  La  Salle  v.  Porlerfleld.  305. 
City  of  LcwLsto^i  V.  Booth,  140. 


City  of  Lincoln  r.  Hockman,  ft»J. 
City  of  Lincoln  f.  Calvert.  M>*. 
City  of  Lincoln  r.  Mnllh,  21.  ;u*«1,  .l.'l 
City  of  Lincoln  r.  Walker.  471 
City  of  Ix>Kan»|M.rt  r.  Dick.  . 
City  of  lyOKansport  v.  .JumIi.  . 
City  of  Molinc  %:  MrKlnnic,  .    i 
(Mty  of  .Murplivsboro  »•.  Itnkri,  .;is. 
(Mty  of  Murphysboro  v.  O'Uilev.  3H. 
City  of  Miirplivsboro  c.   WOoUi-v,  M'.. 
(Mty  of  Mt.  ('armel  i-.  IIo\vrll,4i 
(;ily  of  Mt.  Vernon  v.  Brimk-.  .U. 
City  of  New  .Mbaiiv  v.  Kav,  .im. 
City  of  Newark  v.  Delaware  L   ,1  \V.  K. 

Co.,  139.  143. 
City  of  .Newport  r.  .Miller.  319. 
City  of    Now  WcBinlnater  f.  BrlKhousc. 

302. 
City  of  North  Vernon  f.  Vocgler,  71,  :J01. 

302.  303. 
City  of  Oiney  v.  Itllcy,  205. 
(Mty  of  ()niaha  f.  Ayer,  315,  471. 
City  of  Omaha  !•.  Cunningham,  141. 
City  of  Omaha  i'.  Jensen,  2'.»2. 
tllty  of  Ottawa  v.  Strlcklln,  319. 
City  of  Pckin  r.  M<  Mahon.  .'iKi. 
CItyof  Peoria  v.  Walker.  314. 
City  of  Philadelphia  f.  (iilmarlm,  .".'. 
CItyof  Philadeli)hla  v.  Smith,  :119. 
City  of  Portland  f.  Tavlor.SiNi. 
City  of  Qiilncy  r.  Barker,  3lt'. 
City  of  Kichmond  v.  Malliolland,  31,'.. 
City  of  Hockford  r.  Mallcnbeck,  24. 
City  of  Salliia  f.  Trosper,  322. 
City  of  Sandwich  v.  Dolan.  314,  31.V 
City  of  Scranton  f.  Ulll.aiU. 
City  of  Seymour  f.  (Cummins,  304. 
City  of  Sherman  v.  (,'onnor,  !>'.H. 
City  of  Sherman  »•.  Nalrev,  144. 
Cltv  of  Sherman  r.  WllliiimH,  306. 
City  of  sterllni:  f.  Schlffmackcr,  21'. 
City  of  SlerlluK  f.  .Merrill,  31.«. 
City  of  Streator  f.  Ilamlltlon,  32'2. 
City  of  Terro  llauto  r.  Hudnui,  95,  3i)4. 
City  of  Te.xarkana  v.  Talbot,  Sol. 
City  of  Topekat'.  Sherwood.  322. 
City  of  Valparaiso  t'.  CartwrlRht,  3(M. 
Cltv  of  Vandalia  i:  Kopp,  24,  .dw. 
City  of  Vlcksburj?  v.  .McLaln.  3ii5,  513. 
City  of  Wabash  v.  Carver,  14t',. 
(Mty  of  Wabash  r.  Southwork,  309. 
City  of  Warsaw  f.  Duulap,  319. 
(ylancy  e-.  Byrne,  KKJ. 
("lapp  r.  Kemp,  21t>. 
Clapp  f.  .M  ear,  280. 

Clapp  c.  Minneapolis*  St.  L.  Uv.  Co., 551. 
(Mapp  f.  Town  of  KllliiKCiin,  140. 
(Mapper  f.  'I'nwn  of  Watorford,  137. 
(;iare  t:  Mclntlre,  284. 
Claro  f.  National  Cltv  Bank,  5S4. 
Clark  f.  BlythlnR,  .')»&. 
Clark  f.  Burns,  407. 
Clark  1-.  Chambers,  31,  141,  275,  286,  2S8, 

619. 
Clark  r.  Clark.  2.'57. 
(Mark  c.  Citv  of  Manchostcr,  76,  Mi*, 
(lark  c.  Falrlev,  .V.'8. 
(Mark  r.  Famous  S.  A  C.  Co.,  483. 
Clark  r.  Fry.  ii^.  141.218. 
(Mark  r.  (iarlleld.JUl. 
Clark  f.  Koehler,  2(tl. 
Clarke.  Lincoln  Co..  136 
Clark  f .  Missouri  Pac.  By.  Co.,  SOL 
(Mark  r.  New  York,  etc.,  U.  Co..  466,541. 


616 


TABLE    OF   CITATIONS. 


References  are  to  Pages. 


Clark  V.  Northern  Pac.  R.  Co.,  505. 

Clark  i:  St.  Louie,  eic.U.  Co.,  2(j4. 

Clark  f.  St.  Paul,  etc.,  B.  Co.,  403,494. 

Clark  r.  Spicer,  451. 

Clark  V.  Stevens,  429. 

Clark  V.  Village  of  North  Muskegon,  295. 

Clark  r.  Wilmington  &  W.  E.  Co.,  40. 

Clarke  v.  Md.  Ry.  Co..  291. 

Clarke  V.  Chicago,  etc.,  K.  Co.,  87. 

ClarksoQ  v.  Musgrave,  240. 

Classman  r.  Merkel.  435. 

Clay  V.  Central  R.  &  B.  Co.,  54L 

Clav  V.  Wood,  63,  65. 

ClaVards  v.  Dethick,  479,  431,  498. 

Clavford  v.  U.  K.  Electric  Tel.  Co.,  598. 

ClaVlord  v.  Wilbur,  423. 

Claypool  V.  Gish,  432. 

Clayton  v.  Hunt,  342. 

Cleary  v.  Oceanic   .'>team   Xav.  Co.,  73. 

Cleghorn  v.  New  York,  etc.,  E.  Co.,  58S. 

Clement  r.  Canfleld,  372,  373. 

Clement  v.  W.  U.  Tel.  Co.,  594. 

Clements  v.  Louisiana  E.  L.  Co.,  472,  474, 

478,  480. 
Cleveland  v.  Grand  Trunk  R.  Co.,  88,  89. 
Cleveland,  etc.,  R.  Co.  v.  Manson,  378, 515. 
Cleveland,  etc.,  R.  Co.  v.  Myers,  113. 
Cleveland,  etc.,  R.  Co-  v.  Newell,  527. 
Cleveland  v.  Spier,  140. 
Cleveland,  etc.,  R.  Co.  v.  Abney,  113. 
Cleveland,  etc.,  R.  Co.  v.  Closser,339. 
Cleveland,  etc.,  R.  Co.  v.  Crawford,  473. 
Cleveland,  etc.,  K.  Co.  v.  Curran,  384. 
Cleveland,  etc.,  R.  Co.  v.  Dncharme,  463. 
Cleveland,  etc.,  R.  Co.  v.  Elliott,  50,  463. 
Cleveland,  etc.,  R.  Co.  v.  Ketcham,  385. 
Cleveland  r.  N.  N.  J.  S.  Co.,  398. 
Cleveland,  etc.,  R.  Co.  r.  Rowan,  544. 
Cleveland,  etc.,  R.  Co.  v.  scud'ier,  120. 
Cleveland,  etc.,  R.  Co.  v.  Terry,  478,  502. 
Cliff  V.  Mid.  Rv.  Co  ,  277. 
Clitf'rd  r.  Dam,  103. 

Clilford  V.  Denver,  S.  P.  &  P.  E.  Co.,  42. 
ClitfurJ  v.  Tyman,  65. 
Clifton  V.  Hooper,  454. 
Cllne  V.  Crescent  City  R.  Co.,  34. 
Clinton  v.  Howard,  142. 
Clore  V.  Mclntire,  5:58. 
Clotworihy  f.  The  Hannibal,  etc.,  R.  Co., 

54,  379. 
Clough  V.  Bond,  263. 

Cloughessy  v.  City  of  Waterbury,  311, 312. 
Clovd  V.  Stf  iger,  60. 
Cluiow  V.  McClelland,  146. 
Ch  de  r.  Hubbard, 360. 
Clyde  V.  Richmond  &  D.  R.  Co.,  32. 
Coates  V.  Missouri,  etc.,  Ry.  Co.,  45,  91. 
Cobb  V.  Columbia  &  G.  R.  Co.,  206. 
Ci.bb  V  Illinois  Cent.  Ry,  Co.,  36L 
Cochrane  v.  Little,  428. 
Cockle  V.  a.  E.  Rv.  Co.,  399. 
Cody  V.  New  York  &  N.  E.  R.  Co.,  485. 
Coe  V.  W  ise,  299. 

Coggs  f.  Bernard,  266,  267,  421,  456. 
CoKgswell  r.  Oregon,  etc.,  R.  Co  ,  51. 
Cogswell  V.  West  St.,  etc.,  Ry.  Co.,  371, 

377,384. 
Cohen  v.  Cleveland.  302. 
Cohen  v.  Eureka  Ry.  Co.,  390. 
Cohen  r.  Frobt,  363. 
Cohen  v.  .Simmons,  8. 
Cohen  v.  S.  E.  Ry.  Co.,  360,361,362. 
Cohn  r.  Heusner,  432. 
Colley  «.  Wcblbrook,  55. 


Coke  V.  Gutkese,  107. 

Cole  V.  Chicago,  B.  &  Q.  R.  Co.,  112, 114. 

Cole  v.  City  of  Newburyport,  138. 

Coler.  Fisher,  286. 

Cole  t:  Goodwin,  393. 

Coleman  v.  Second  Av.  R.  Co.,  400,  483, 

515. 
Coles  V.  Louisville,  etc.,  R.  Co.,  354. 
CoUard  v.  S.  E.  R.  Co.,  356. 
CoUett  V.  L.  &  N.  W.  Rv.  Co.,  3. 
Collier  v.  Chicago  &  A.R.  Co.,  96. 
Collier  V.  Georgia  R.  R.  Co.,  116. 
Collins  V.  Alabama  G.  S.  R.  Co.,  340. 
Collins  V.  Boston,  etc.,  R.  Co.,  365,  513. 
Collins  f.  Cbartiers  Val.  Gas  Co.,  98. 
Collins  V.  City  of  PhUadelphia,  94,  300, 

304. 
Collins  r.  City  of  Waltham,299.. 
Collins  f.  Council  Bluffs,  39,  595. 
Collins  V.  Decker,  39. 
Collins  f.  EastTenn.  R.  Co.,  543. 
Collins  V.  Leafv,  14J. 
Collins  V.  Mid.  Level  Commrs.,  27,  299. 
Collins  r.  N.  Y.,  etc.,  R.  Co.,  91. 
Collins  v.  Selden,  134. 
Coins  r.  Selden,3,  4,11,  18, 
Colorado  Ry.  v.  Holmes,  462. 
Colrlck  V.  Swinburne,  97. 
Colton  V.  Cleveland,  etc.,  R.  Co.,  361. 
Colton  V.  Onderdonk,  2s7. 
Colton  V.  Wise,  60. 
Columbus,  etc.,  R.  Co.  v.  Farrell,  393. 
I  Columbus  &  W^.  Ry.  Co.  v.  Bradford,  488. 

537. 
Columbus  &  W.  Ry.  Co.  v.  Ludden,  340. 
Colvin  V.  Peck,  5s9. 

Commercial  Bank  r.  Barksdale,  450,  452. 
Commercial  Bank  v.  Union  Bank,  443. 
Commercial  Bank  v.  Varnnm,452. 
Commissioners  of  Highways  v.  Martin, 

1:55. 
Commonwealth  v.  Allen,  64. 
Commonwealth  v.  Barrett,  117. 
Commonwealtn  v.  Boston,  etc.,  R.  Co., 

310,  381. 
Commonwealth  v.  Harmer,  13. 
Commonwealth  v.  Petree,  257. 
Commonwealth  v.  Pierce,  424. 
Commonwealth  v.  Thompson,  424. 
Concord,  etc.,  R.  C.  v.  Forsalth,  :539. 
Condict  V.  Grand  Trunk  R.  Co.,  48,  358. 
Cones  V.  Cincinnati,  etc.,  iiy.  Co.,  499. 
Cones  V.  Com'rs.  Benton  Co.,  136. 
Congdon  v.  Central,  etc.,R.  Co.,  113,120. 
Congdon  v.  Howe  Scale  Co.,  571. 
Congress,  etc.,  Spring  Co.  v.  Edgar,  125, 

127. 
Congreve  v.  Morgan,  103,  310. 
Congreve  v.  Smith,  82,  102,  219,  267,  27L 
Conklin  v.  Thompson,  286. 
Connelly  v.  N.  Y.  C,  etc.,  R.  Co..  50. 
Conner  v.  Citizen's  St.  Ry.  Co.,  478. 
Connolly  v.  City  of  Waltham,  489. 
Connolly  v.  Warren,  364. 
Connor  v.  Chicago,  etc.,  R.  Co.,  248. 
Connors  v.  Burlington,  etc.,  R.  Co.  637. 
Conover  v.  Pacillc  Exp.  Co.,  347. 
Conradt  v.  Clauve,  27s. 
Conroy  v.  Vulcan  Iron  Works,  494,  496. 
Consolidated  Coal  Co.  v.  Haennl,  595. 
Consolidated  Coal  Co.  f.Wombacker, 4(3. 
Consolidated  Ice  Machine  Co.  v.  Keifer, 

205. 
Converse  v.  Walker,  75. 


TAHLK    OF    CITATIONS. 


617 


References  are  to  ru^es. 


Conway  v.  Crtiwl,  i-^J. 

Couwull  c.  NoorlmuH,  4.'0. 

C'ouk  V.  Chniiiplutn  Tran^|).  Co.,  89. 

Cuuk  f.  ClilciiKO,  etc.,  Kv.  Co.,  lUU. 

Cook  V.  CUy  of  Mlhvuuki'c,  :Jll-3r2. 

Cook  f.  Clay  .street  IlUl  U.  Co.,&54. 

Cook  V.  JolinBon,  4Kt. 

Cookr.  MoiiiJiRue,  143. 

Cook  r.  I'aliiuT,  4iJ-2. 

Cook  V.  I'arkliain,  4S5. 

Cook  V.  Warliiff,  l.'S,  VM. 

Cook  r.  WllmlDKlon  City  E.  Co.,  479. 

COOLKY    ON  ToKTS     (lb   KU.),  1,  4'J,    89, 

IW, '.'u(5, '2-.'4,'-'83. 
Cooloy  t'.  Freeholders  of  Essex,  135. 
Coombs  f.  New  Uodford  C.  Co.,  211. 
Coomes  v.  iiougtitoii,  il."). 
Cooper  V.  Lake  ^luire  &  M.  S.  U.  Co.,  554. 
Cooper  f.  MlUe  County,  14G. 
Coopt'r  f.  Mullins,  59«>,  597. 
Cooper  r.  Stephenson,  4:i8. 
Coops  f.  Lake  Shore  &  M.   S.  Uy.  Co., 

479. 
Cools  V.  District  of  Columbia,  :}14,59S. 
Copley  f.  New  Huven,  eic.  It.  Co.,  47i. 
Copwood  f.  Italdwlii,  431. 
Corbiil  r.  Andernon,  .Wi. 
CorblQ  r.  AineriCjin  Mills, 213.  220. 
Corbv  r.  II ill,  17,79. 
Cordell  r.  N.  Y.,  el.,  R.  Co.,  505. 
Corllu  r.  West  End  SI.  Uy.  Co.,  370. 
Corliss  f.Sinlih,  127. 
Corcoran  r.  City  of  Benicln,  302. 
Coruman  c.  East  Uy.  Co.,  389. 
Cornwall  r.  Charlotte,  etc.,  H.  Co.,  479. 
Cornwall  v.  Sullivan  It.  Co.,  111. 
Corrigan  r.  Union  .Sug.  Itellnory,  64. 
Corry  v.  G.  W.  Uy.  (;o.,  113. 
Corry  r.  Thames  Iron  Works,  357. 
Corwia  v.  New  York,  etc..  It.  Co.,  Ill, 

120. 
Corva  f.  Corya,  258. 
Cosby  V.  Commonwealth,  449. 
Cosgrove  v.  Ogden,  514,  517,519. 
Coskery  r.  Nagle,  411,  414. 
Cohuerr.  Ceuterville,  311,  .^16. 
Costello  r.  Coushohocken,  304. 
CoBuUch  V.  Standard  Oil  Co.,  524. 
Cottcrill  f    Chicago,  etc.,   It.  Co.,  487. 
Cotton  r.  Wood,  t3.  625. 
Cotton  I'ress  Co.  r.  ISradley,  542,  544. 
Couch  f.  fcteel,  2S9,  2.t3,  448. 
Coulson  f.  Paiihaiiillo  Nat.  Bank,  590. 
Connsell  v.  Hall,  495. 
County  of    Knox  r.  Montgomery,  140. 
County  of  Lehigh  c.  Ilorfort.  145. 
County  Court  Old  Chester,  284. 
County  Comr's  Prince  George's  Co.    r. 

Hurgess,  140. 
Counlv  Com.  Hartford  Co.  v.  Hamilton, 

54 1 ,  642. 
County  Comr's  r.  Wise,  144. 
Coupland  v.  ilardliigham,  102. 
Coupland  v.  ilouMatonic  It.  Co.,  351. 
Covert  v.  Cranford,97. 
Covert  f.  Valentine,  97. 
Covington  Tranbfer  Co.  v.  Kelly,  508. 
Cowan  r.  Bond,  3;i9. 
Cowden  r.  Pacific  Coast  S    8.  Co.  S."/). 
Cowles  f.  Uichmond,  etc.,  U.  Co.,  493. 
Cowley  r.  .Sunderland,  322. 
Cox  I'.  Burbidge,  282,  591. 
Cox  r.  Dclmas,  432. 
Cox  V.  G.  W.  Uy.  Co.,  235. 


Cox  f.  Leech,  4.W. 

Cox  f.  LIvinghli.n,  4 '29,  431, 

Cox  r.  PeleiMoh,  .xn. 

("ox  V.  Sullivan,  427. 

(oxe  r.  II el. -ley,  :U7. 

Coylo  f.  Chicago,  etc.,  It.  (.'n.,  114. 

(.'racknell  v.  Thotford,  2".»S,  29'.t. 

Craildock  r.  LouImvIIIo  &  S.  It.  Co..  50L 

(raft  f.  Parker,  WebbiV  Co.,  50,  4«». 

(rafter  r.  Mel.  Uy.  Co.,  :1S9. 

Crafts  r.  Waterhoiise,  3i'.7. 

Cragln  V.  New  York,  etc,  11.  Co.,  85L 

("ralgw.  Chambers,  422. 

Craig  V.  New  York,  etc.,  II.  Co.,  605. 

Craig  V.  'NVutHon,433. 

(drainer  f.  Opi>enHtoiD,  454. 

Crane  f.  .Mones,  2.')fi. 

Crane  r.  stone,  4.%4. 

Cranmer  v.  Building  .t  Loan  AH8n.,4.T2. 

Crawford  v.  luleruallonal    A    G.    N.  It. 

Co.,.'i90. 
Crawford  v.  Railroad  (;o.,  3«')0. 
Crawford  v.  Smith,  2'./2. 
Crawford  v.  Wilson,  b2. 
Crawfordvllle  f.  Siiiilh,  28. 
Creed  r.  Pennsylvania,  etc..  It.  Co.,  383. 
Cregln    t'.  Brooklyn    Cro»»lown  11.  Co., 

54.5,  510. 
Crenhhawf.  lTllraan,224. 
Crescent  r.  Andernon,  .'xk-<. 
Cressey    r.  Northern,  etc..  It.    Co.,  112, 

120. 
Creasy  r.  HcBtonvlUe,  142. 
t/'rlpps  f.  Ju<lge.  229. 
Crocker  r.  Gullifer,  211. 
Crockett  v.  Calvert,  214. 
Croft  V.  Alison,  200. 
(/'rofls  r.  Waterhouse,  393. 
Crogan  v.  Schlele,  72,  82. 
(  roker  f.  Chicago,  etc.,  11.  Co., 207. 
Cromartv  r.  City  of  Boston,  313. 
Cro>8  r. 'California  Si.  (  .  Uy.  Co.,  33. 
Cro.-s  f.  Lake  shore  &,  M.  S.  Uy.  Co.,  394. 
Crosse  i'.  Siiiilh,  254. 
Crotty  r.  Eagle,  437. 
Crouch  r.t;.  N.  Uy.  Co.,  334,  358. 
Crowder  r.  Long,  452. 
Crowburst  i-.  Ameraham  Uarlal  Board, 

92. 
Crowley  v.  f^t.  Louis,  etc.,  Ry.  Co.,  483. 
Cruikshank  f.  tioodwin,  434. 
Cruiiipley  r.  Hannibal  A  St.  J.  R.  Co.,  471. 
Crulchlleld  t'.  Ulchmoud,  etc..  It.  Co..  494. 
(-'uddy  c.  Horn.  508. 
Culf  V.  Newark,  etc.,  II.  Co.,  215,  210,  219, 

222. 
f  ulbrcathy  r.  Phlla.,  olc,  R.  Co..  340. 
Cullen  f.  Delaware  A  H.  C.  Co.,  5«2. 
Cullln  f.  Morris.  44.V 
Cumberland,  etc.  It.  Co.  v.  Fagenbaker. 

540. 
Cumberland,  etc..  It.  Co.  v.  MaDgana,S79, 

3-0. 
Cumberland  r.  Willlson.  .102. 
Cummings  r.  The  National  Kamaco  Co., 

5-2^»,.'>.;2. 
Cninmins  r.  Hcald,  4:W. 
(;ummins  r.  Mcl<enn.432. 
CuinnilQBi'.  P.  C.  A  St.  L.  It.  W.  Co.,  ISS, 

250. 
Cunningham  r.  Bncklin,  449.  450. 
('unnlnghain  v.  I.vne»r»,  4t4i. 
CurUy  f.  lllinnlsCenl.  It.  Co..  638. 
Currlco  t'.  West  Va.  C.  A  P.  Ry.  Co.,  378. 


618 


TABLE    or    CITATIONS. 


References  are  to  Pages. 


Currier  f.  Boston  Music  Hall  Assn.,  73, 

268. 
Curtis  V.  Drinkwater,  392. 
Curtis  V.  Eastern  R.  Co.,  95. 
Curtis  V.  Hiley,103. 
Curtis  V.  Mills,  131. 
Curtis  f.  Murphy,  417. 
Curtis  v.  Rochester,  etc.,  R.  Co.,  527,  596. 
Cusick  V.  Adams,  278. 
Outhbertson  v.  Parsons,  214. 
Cutler  r.Bonney,  411,  412. 
Cutter  v.  Hamlen,  108. 
Cuyler  v.  Dicker,  484. 
Czech  V.  General  Steam  Xavigation  Co., 

523,  525. 
Czezewzka  v.  Benton  Bellefontaine  Ry. 

Co.,  461. 


D. 

Dacey  v.  Old  Colony  R.  Co.,  538. 
Daggett  V.  City  of  Cohoes,  304. 
Dahlbergr.  Minneapolis  St.  Ry.  Co.,  53, 

378. 
Dahlstrom  v.  St.  Louis,  etc.Ry.,  55. 
Dalay  v.  Worcester,  317. 
Dalon  V.  Savage,  103. 
Dale  V.  St.  Louis,  etc.,  R.  Co.,  493. 
Dallas  Consolidated  Traction  Ry.  Co.  v. 

Hurley,  471. 
Dallas,  etc.,  R.  Co.  v.  Splcker,  471,552, 554, 
Dalton  V.  S.  E.  Rv.  Co.,  544,  545. 
Dalton  V.  State,  450. 
Dalton  V.  Upper  Tyrone  Tp.,  144. 
Dalton  V.  West  End  St.  Ry,  Co.,  437. 
Daly   V.    Butchers',   etc.,   Bank  of    St. 

Louis,  443. 
Daly  V.  New  Jersey,  S.  &  I.  Co.,  538,  541. 
Daly  V.  Norfolk,  etc.,R.  Co.,  518. 
Damon  v.  Boston,  311. 
Damon  v.  Scituate,  480. 
Damont  v.  New  Orleans,  etc.,  R.  Co., 

54,  379. 
Damour  v.  Lyons,  478. 
Daiiipman  r.  Penn.svlvanla  R.  Co.,  527. 
Dana  v.  National  Bank  of  the  Republic, 

443. 
Daniel  v.  Met.  Ry.  Co.,  3,  24, 48,  389,  392, 

468,541,552. 
Daniels  v.  Ballentlne,  36,  47. 
Daniels  v.  City  of  London,  435. 
Daniels  v.  Clegg,  64, 
Daniels  V.  Hart,  372. 
Daniels  v.  New  York,  etc.,  R.  Co.,  78. 
Daniels  v.  Potter,  102. 
Daniels  V.  Savannah,  etc.,  Rv.  Co.,  541. 
Danner  v.  South  Carolina  Ry.  Co.,  121, 

401,528. 
Dansev  v.  Richardson,  411. 
Danville,  etc.,  Tp.  Co.  v.  Stewart,  508. 
I)'.\rc  V.  L.  &  N.  W.  Rv.  Co.,  347,  371. 
Darke  v.  Martyn,  258,  263. 
Darling,  v.  Bangor,  482. 
Darling  v.  Passadumkeag  Log-Driving 

(;o.,  506.  o        o  6 

Darling  v.  Westmoreland,  321. 
Darnaby  v.  Watts,  262. 
Dash  V.  Fltzhugh,72. 
Darlnall  v.  Howard,  438,  4.57. 
Daub  V.  Yonkers  R.  Co.,  374. 
Daube  v.  Tennlson,  517. 
Davenport  v.  Uuckman,  314,  503. 


Davey  v.  L.  &  S.  W.  Ry.  Co.,  48,  399, 107. 

478,  485,  498. 
Davidheiser  v.  Rhodes,  94. 
Davidson  v.  Cornell,  494. 
David.-ion  v.  Fi.scher,  107. 
Davidson  v.  HefFron,  430. 
Davidson  v.  Monkland  Ry.  Co.,  513. 
Davidson  v.  Portland,  40,  481,  482. 
Davidson  v.  Rozier,  436. 
Davidson  v.  Seymour,  4.53. 
Davidson  v.  Southern  Pac.  Co.,  59G. 
Davie  V.  Levy,  215. 
Davies  v.  Mann,  459,  460,  461,  462,  517. 
Davis  V.  Berwick,  229. 
Davis  V.  Central  Congregational  Society 

of  Jamaica  Plaic,  72. 
Davis  V.  Central  Vermont  R.  Co.,  348. 
Davis  V.  Chicago,  etc.,  R.  Co  ,  75,  278. 
Davis  V.  Clinton  Water  Works,  13. 
Davis  V.  Corry,  321. 
Davis  V.  Gay,  419. 
Davis  V.  Graham,  495. 
Davis  V.  Guarnleri,  286, 506. 
Davis  r.  Hall, 4.35. 

Davis  V.  Hannibal  &  St.  Jo.  Ry.  Co.,  117. 
Davis  V.  Jacksonville  S.  Line,  361. 
Davey  !•.  Jones,  443. 
Darwin  f.  Charlotte,  etc.,  R.  Co.,  466. 
Davis  V.  Lee,  433. 

Davis  V.  L.  &  Blackwall  Ry.  Co.,  67,  389. 
Davis  V.  Michigan  Bell  Telephone  Co., 

309. 
Davis  V.  New  York,  etc.,  R.  Co.,  499,  502. 
Davis  V.  Severance,  433. 
Davis  V.  Sommerville,  40. 
Davis  V.  Southern  Pac.  Co.,  252. 
Davis  V.  Spicer,  426. 
Davis  V.  St.  Louis,  etc.,  Ry.  Co.,  537. 
Davis  V.  Town  of  Rumney,  539. 
Davis  V.  Wabash,  etc.,  R.  Co.,  336. 
Davis  r-.  Will  an,  342. 
Davis  V.  Williams,  37. 
Dawkins  r.  Gulf,  etc.,  R.  Co.,  201. 
Dawson  V.  Chamney,  410,  412. 
Dawson  V.  MidlandRv.  Co.,  110. 
Dawson  2).  M.  S.  &  L.  Ry.  Co.,  523. 
Dawson  v.  St.  Louis,  etc.,  R.  Co.,  347, 

352,  354. 
Dax  V.  Ward,  438. 
Day  V.  City  of  Mt.  Pleasant,  141. 
Day  V.  Essex  Electric  St.  Ry.  Co.,  78. 
Day  V.  Highland  St.  R.  R.  Co.,  40. 
Day  V.  Milford,  305. 
Day  V.  New  Orleans,  etc.,  R.  Co.,  123. 
Day  V.  Reynolds,  12. 
Dayrell  v.  Tyrer,  213,  214. 
Deverenx  v.  Bucklev,  358. 
Deville  V.  Southern  Pac.  R.  Co.,  283. 
Devlin  v.  Smith,  222. 
DeVoln  V.  Michigan  Lumber  Co.,  210. 
Devol  V.  VanVranker,  587. 
Dewey  v.  Leonard,  85. 
Dewlre  v.  Bailey,  315,  479. 
Dewitt  V.  Oppenhelmer,  453. 
Dean  v.  Benn,  96. 
Dean  v.  Chicago,  etc.,  R.  Co.,  122. 
Dean  v.  Randolph,  305. 
Deaue  v.  Clayton,  4,286. 
Dearborn  v.  Dearborn,  431. 
Dearth  v.  Baker,  126,  282. 
Deate  v.  Keate,  57. 

Debevolser.  N.  Y.  L.  E.,  etc.,  R.  Co.,  55j. 
Defer  v.  CIt^  of  Detroit,  305. 
Degg  V.  Midland  ky.,80. 


TAllLE    OF    CITATIONS. 


CVJ 


Rofereuops  are  to  I'ligps. 


DcGrny  r.  Alkon,  77. 
DchniiK  t'.  Co  111  H  lock,  71. 
Delliim  I-.  Mcxlciin  Nut.  U.  Co.,  655. 
DoikiiiHn  r.  .MorKHn's,  etc.,  Co..  47'2. 
l)tM8i>ii  r.  ChlCHRO,  i't<r.,  Ky.  (;o.,  M."). 
noJurtu'tto  V.  Di'Jiirnette,  ifW. 
Dclnni-y  r.  roniiHylvaiila  U.  Co.,  73. 
Di'lano  I-.  Case,  :VJ-l. 

Delaware,  elc,  U.  Co.  r.  Converse,  .VX). 
Dolawarc,  etc.,  Uo.  Co.  r.  Iletfornan,  6M. 
Delaware,  etc.,  K.  Co.  r.  Joiicm,  MS. 
Delaware,  etc,  K.  Co.  v.  Naphcys,  .Vi?, 

fi2S. 
Delaware,  etc,  U.  Co.  v.  Salmon,  38,  88, 

S'.t. 
Delaware,  etc.,  R.  Co.  r.  Toffoy,  505. 
Delaware,  etc.,  K.  Co.  r.  Trautwelii,  iu. 
DelRer  v.  St.  I'aiil,  30«. 
Doll.>4  r.  Stollewerk,  212. 
DcMay  r.  Koberts,  i-li. 
DeMaby  r.  Morgan  1..  &  T.  U.  AS.  S.  Co., 

DcMcnaclio  r.  Ward,  330. 

DemliiK  r.  Storage  Co.,  31. 

De.Moraniia  f.   Dunkin,  452. 

Dcniiain  r.  Trinity  Co.  L.  Co.,  481). 

Dcnixon  v.  Seynmiir,  S.Vi. 

Deninan  i\  Si'.  Paul,  etc.,  R.  Co.,  52. 

Dennick  v.  Central  11    R.  Co.,  540,  555. 

Dennlson  r.  Lincoln,  129. 

Dennis  c.  lluyck,  (10. 

Dennis  r.  Sipperby,  138. 

Dennis  v.  Whethain,  448. 

Denny  v.  Correll,  133. 

Denny  r.  N.  Y.  Cent.  R.  Co.,  47,  338. 

Densinorc  Oil  Co.  v.  Densmorc,  333. 

Denton  r.  Emburv,432. 

Denver   &  H.  P.  Rapid  Transit  Co.   r. 

Dwyer,  4fi2. 
Denver,  etc.,  R.  Co.  v.  Conway,  287. 
Denver,  etc.,  R.  Co.  v.  De  Grj'ilf,  88. 
Denver,  etc.,  R    Co.  v.  Morton,  491. 
Denver,  etc.,  R.  Co.  v.  Robblns,  40. 
Denver,  etc.,  R.  Co.  r.  Uyan,  470. 
Denver,  etc.,  H.  Co.  r.  Wll.son,  S.'jS. 
Denver  Tramway  Co.  c.  Held,  48<;,  503. 
Deppe  V.  C.  K.,  I.  &  1'.  R.  Co.,  24t;. 
Derby  r.  Kentucky  Cent.  R.  Co.,  .Ml. 
Derk  v.  Nortbern  Cent.  Ry.  Co.,  501. 
De  HouQ^ny  r.  Pcale,  438. 
Derrv  r.  Kletner,  27. 
Derwort  v.  Loonier,  392,  4.36. 
Delrolt  r.  Putnam,  307. 
Detroit,  etc.,  R.  Co.  r.  Cartis,  376. 
Detroit,  etc.,  R.  Co.  v.  McKcnzlo,  360. 
Detroit,   etc.,  K.  Co.  v.  Van  Steinberg, 

60,  472. 
Diamond  r.  Northern  Pac  R.  Co.,  87. 
Dibble  I'.  Hrown,  405. 
Dibble  V.  New  York,  etc.,  R.  Co.,  542. 
Dickenson  v.  N.  K.  Hy.  Co.,  535. 
Dickinson  v.  Uoyle,  48. 
Dickinson  v.  Grand  Junction  Canal  Co., 

96. 
Dickinson  v.  Hart,  592. 
Dickinson  v.  MIncbester,  414. 
Dlckerson  v.  Hodges,  435. 
Dickson  f.  Hollister,  44,  309. 
Dickson  f.  McCov,  127. 
DIck.son  f.  Kenter'sTcl.  Co.,446. 
Dickson  f.  Wuldron,  206. 
Dickson  r.  Wilkinson,  8. 
DIehl  V.  Woodruff,  401,402,  406. 
Dignam  i'.  Bally,  449. 


I>illlnK'bnin  v.  .\nthony.  207. 

Dllllii^'bain  t-.  Crank,  I'-tH. 

DlM.oN'H  .Mi;m<  II  Ai.  CoKI'.,396,  302. 

Dllbin  V.  Hunt,  ■:i\>,  :<'^. 

Dliiiick  r.  ClilcnK'.,,  etc.,  It.  Co.,  505. 

Dlniock  V.  Sufllold,  143. 

Diinmey  v.   \\  beelinit,  etc.,  R.  Co.,  4*J. 

Diiiunitt  V.  Hannibal    A  St.  Joo  U.  Co.. 

486. 
Dirineyer  r.  O'Heon,  596. 
DiMtler  f.  Long  I>«liind  U.  ('o.,  37<>. 
District  of  Columbia  e.  .\rmeM,:t»|. 
District  of  Columbia  r.  WaMhingiun  Gut 

Ligbt  Co.,  323. 
District  of  Oolumbia  r.  Woodbury,  318. 
Dltberncr  f.  l{oger8,222. 
DItcbetli-.  K.  R   Co  .  lOti. 
Dittrlch  f.  Delrolt,  314,318. 
DIvinnellor.  .New  York,  etc,  R.  Co.,  207. 
Dixon  V.  Bell,  2«<;,  601. 
Dixon  f.  Metropolllaa  Board  of  Works, 

2<.l,  <.»2,  299. 
Dixon  f.  New  York  C.  4  H.  It.  Co.,  113. 
Dixon  f.  Pluns,  71. 
Dlanbl  v.  St.  Louis,  etc.,  Ry.  Co.,  501. 
Doun  V.  St.  Louis,  etc.,  Ry.  Co.,  SI4,  :tSI, 

352. 
Dobleckl  V.  Sharp,  394. 
Dockcrv  V.  Hul.Hon.  l'2<i,  127. 
Dodd  I-.  Holme,  7,67,69. 
Dod^e  r.  .National   Kxchango  Bank,  442. 
Doggett  t'    Illinois,  etc..  It.  Co.,  :W. 
Driffjfclt  r.  Kicbiiiond  It.  Co.,  4r.,  47  !. 
Dolan  f.  Delaware,  etc.,  K.  Co.,  500. 
Dollard  f.  Roberts.  107,506. 
Donahoc  v.  Wabash,  etc.,  Ry.  Co.,  483, 

520. 
Donaldson  r.  Holdnne,  431,  438. 
Donaldson  v.  Mississippi,    etc..  It.  Co., 

542,  546. 
Donaldson  i:  Wilson,  107. 
Done^ran  f.  Krbardt,  121. 
Donnelly  r.  Brooklyn  City  R.  Co.,  51. 
Donnelly  f.  HufMchmldt.  mi. 
Donner  r.  .Madison  County  Bank,  443. 
Donney  v.  Hendrle,  377. 
Donohof.  Vulcan  Iron  Works,  513. 
Donohucf.  SI.  LoulH,etc  ,   Itv.  Co.,  50). 
Doiiova  V.  Oakland*  I!.  It.  T.  Co.,2.'5. 
Donovan  r.  Hannibal  A  St.  Joe  It.  Co. ,471. 
Donovan  c.  Laing,  214. 
Dooley  r.  City  .Merldcn,  311. 
Dooley  f.  Missouri  Pac.  By.  Co.,  lis. 
Dooley  r.  Sullivan,  3<Hi. 
Doorman  v.  Jenkins,  456. 
Dorchecter.  etc..  Hank  r.  Now  England 

Bank,  443. 
Dorman  t>.  Arnes,  105. 
Dormont  v.  Kurness  Ity.  Co.,  296,  2»9. 
Dorr  f.  Micklev,  4.V). 
Dorr  f.  New  Jersey  Steam  Nav.  Co.,S«X 
Dorrity  r.  Itapp,  8. 
Dorsey  r.  Plillllps.  493. 
Doster  v.  Scully,  428. 
Doub  V.  Barnes,  4:«5. 
Dongan  r.  C.  T.  Co.,  308. 
Dougherty  r.  fMilcago.  etc..  R.  Co.,  .TTO. 
Dougherty  f.  Hor.se  Heads,  306. 
Dougherty  v.  Missouri  R.  Co.,  374,  489, 

52:1. 
Dougherty  v.  R.  Co.,  64. 
Dongheriy  r.  West  Superior  I.  A  S.  Co.. 

489. 
Douglass  f.  Hannibal  A  St.  J.  R.  Co..  3i4. 


620 


TABLE    OF    CITATIONS. 


References  are  to  Pases. 


DouRlass  V.  Pioux  City  Ry.  Co.,  373. 

Doughty  V.  Firbank,  235. 

Dowe  V.  Flint  &  P.  M.  R.  Co.,  49S. 

Dowell  V.  Vicksburgh,  53. 

Dowllng  V.  Allen,  465. 

Downey  v.  Chesapeake  &  O.  R.  Co.,  479. 

Downing  v.  Herrick,  451. 

Doyle  V.  Blake,  '2(j5. 

Doyle  V.  Union  Pac.  Ry.  Co.,  107. 

Doyle  V.  Wragg,  5'23. 

Dr.  Harter  Medicine  Co.  v.  Hopkins,  592. 

Drake  v.  Chicago,  etc.,  R.  Co.,  93,  95. 

Drake  v.  Klely,  42. 

Drake  v.  Lady  Ensley  C.  I.  &  R.  Co.,  98. 

Drake  v.  Lowell,  305. 

Drake  v.  Mount,  125. 

Drake  v.  New  York,  etc.,  Ry.,  96. 

Drake  v.  Pittsburgh,  etc.K.  Co.,  112,  121. 

Drake  v.  Sykes,  452. 

Dressell  v.  Kingston,  141, 142,  218. 

Drew  V.  New  River  Co.,  139. 

Drew  V.  Sutton.  316,  317. 

Drummond  v.  Crane,  592. 

Dublin  W.  &  W.  Rv.  Co.  v.  Slattery,  25, 

279,  391,  397,  106,  477,  485,  488,  490. 
Du  Bois  V.  Becker,  426,  493. 
Dubois  V.  City  of  Kingston,  307. 
Dubuque  Wood,  etc.,  Ass.  v.  Dubuque, 

36,  48. 
Duckworth  v.  Johnson,  543. 
Dudleys.  Bolles,  66. 
Dudley  r.  Camden,  etc..  Ferry  Co.,  59. 
Dudley  r.  Smith,  367. 
Duff  V.  The  Great  N.  Ry.  Co.,  386. 
Dufford  V.  Smith,  26:}. 
Dntfy  V.  Chicago,  etc.,  R.  Co., 500. 
Duffy  V.  City  Dubuque,  316. 
Duffy  V.  Thompson,  364. 
Dngginsf.  Watson,  512. 
Dun  V.  Seaboard,  etc.,  R.  Co..  52,  378. 
Dunbier  V.  Day,  412. 
Duncan  v.  Thwaites,  134. 
Duncan  v.  Wyatt  Park  Ry.  Co.,  .54,  379. 
Dundas  v.  Lansing,  315,  322. 
Dundee,  etc.,  Co.  v.  Hughes,  12,  430. 
Dundonald  v.  Masterman,  429. 
Dunham  v.  Boston  &  A.  R.  Co.,  340. 
Dunham  v.  Rockliff,  64. 
Dunham  Towing  &  W.  Co.  v.  Dandelin, 

485. 
Dunkirk,  etc.,  R.  Co.  v.  Mead,  110,  111, 

119. 
Dunlap  V,  International  Steamboat  Co., 

3C5. 
Dunlap  V.  Wagner,  41. 
Dunlap  V.  Munroe,  225,  450. 
Dunn  V.  Birmingham  Canal  Nav.  Co. ,294. 
Dunn  V.  Grand  Trunk  R.  Co.,  :'.83. 
Dunn  V.  New  Haven  Steamboat  Co.,  364. 
Dunnigarv.  Chicago,  etc.,  R.  Co.,  117. 
Dunning  v.  Earl  of  Gainsborough,  262. 
Duntley  v.  Boston  &  M.  352. 
Durant  v.  Palmer,  82,  102,  140. 
Durbln  v.  Oregon  Ry.  &  Nav.  Co.,  506. 
Durden  v.  Barnett,  126,  127. 
Durfee  v.  Johnstown,  etc.,  R.  Co.,  371. 
Durgln  V.  American  Exp.  Co.,  344. 
Durgln  V.  Neal,  602. 
Durham  v.  Wilmington,  etc.,  R.  Co.,  Ill, 

122. 
DuHh  V.  Fitzhngh,587. 
Dutzl  r.  Geieel,  485. 
Duviil  r.  Hunt,  541. 
Divight  r.  Simon,  432,  433. 


Dwyer  v.  Chicago,  etc.,  Ry.  Co.,  542. 
Dwyer  v.  New  York,  etc.,  Ry.  Co.,  379. 

480. 
Dwyer  v.  Railroad  Co.,  619. 
Dwyer  v.  Woulfe,  452. 
Dyer  v.  City  of  St.  Paul,  9,  302. 
Dyer  v.  Erie  R.  Co.,  502, 508,  509. 
Dyer  v.  Riley,  2H2. 
Dygert  v.  Schenk,  103. 
Dykema  v.  Minneapolis,  etc.,  Ry.  Co.,  692. 


E. 

Eakin  v.  Brown,  101. 

Eames  v.  Salem,  etc.,  R.  Co.,  Ill,  114. 

Earing  v.  Lansingh,  64,  526. 

Earl  V.  Crouch,  77. 

Karl  V.  Van  Alstlne,  126. 

Earl  of    Gainsborough   v.    Westcombe 

Terra  Cotta  Clay  Co.,  262. 
Early  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  395. 
Easley  v.  Missouri  Pac.  Ry.  Co.,  501. 
East  Uaddam  Bank  t;.  Scovil,  443,  452. 
East  Line  &  Red  R.  Co.  v.  Cnlbertson,  373, 

540. 
East  Line  &  Red  R.  Ry.  Co.  v.  Rushing, 

44. 
Eastern  Counties  Ry.  Co.,  Exparte,  265. 
Eastman  v.  Amoskeag  Manuf.  Co.,  Iu5. 
Eastman  v.  County  of  Clackawas,  146. 
Eaf-tinan  v.  Meredith,  135. 
Easton  v.  Railroad  Co.,  216. 
East  St.    Louis    Connecting  Rv.  Co.  v. 

Wabash,  etc.,  Ry.  Co.,  360. 
EastTenn.,  V.  &  G.  R.  Co.  r.  Aiken, 466. 
East  Tennessee,  etc.,  R.  Co.  v.  Daffleld, 

496. 
East  Tenn.,  etc.,  R.  Co.  v.  Fain,  466. 
East  Tenn.,  Va.  &  G.  R.  Co.  v.  Gurley, 

466. 
East  Tenn.,  V.  &  G.  R.  Co.  v.  Hale,  354. 
East  Tenn.,  V.  &  G.  R.  Co.  v.  Heslera, 

45,  88. 
East  Tenn.,  V.  &  G.  R.  Co.  v.  Hull,  466. 
East  Tennessee,  V.  &  G.  R.  Co.  v.  Kelly, 

340. 
Ea>t  Tenn.,  V.  &  G.  R.  Co.  v.  Lee.  589. 
East  Tenn.,  V.  &  G.  R.  Co.  v.  Lockhart, 

34. 
East  Tenn.,  V.  &  G.  R.  v.  Maloy,  .527,  652. 
East  Tenn.,  V.  &  G.  R.  Co.  v.  Markens, 

508. 
East  Tenn.,  Va.,  etc.,  R.  Co.  v.  Rnsh,  479. 
East  Tenn.,  Va.,  etc.,  R.  Co.  v.  Tepplns, 

552. 
East  Tenn.,  V.  &  G.  R.  Co.  v.  Watson, 

390. 
East  Tennessee,  etc.,  R.  Co.  v.  Whittle, 

351,  352. 
Eaton  V.  Boston,  etc.,  R.  Co..  38. 
Eaton  V.  Oregon  Ry.  &  Nav.  Co.,  122. 
Eaves  V.  Hlckson,  259.  • 

Eccles  V.  Stephenson, 429. 
Echol  V.  LouisviUe  &  N.  R.  Co.,  359. 
Eckerd  v.  Chicago  &  N.  W.  Ry.  Co.,  479. 
Eckert  v.  Long  Island  R.  Co.,  487. 
Eckert  v.  St.  Louis,  etc.,  B.  Co.,  462. 
Eddy  V.  Bodkin,  494. 
Eddy  V.  Kinney,  120. 
Eddy  I'.  Lafayette,  86. 
Eddy  r.  Powell,  501. 
Eddy  V.  Wallace,  380. 


TAIJMO    Ol     CITATIONS. 


r.2i 


References  arc  to  Pafres. 


Kden  r.  I.oxInRton,  etc.,  R.  Co.,  r)4C. 
Ki'IIh  r.  .St.  LoulH,  ctc.,Uy.  I'o..  ;H7,  H.V2. 
KilKurloii  V.  N.  Y..  <lc..  It    Co.,  377,  6.'». 
t-.ilniuiid.-t  f.  C'rfiihhaw,  "Jtii. 
KtlinouUbou  c.  Kfiiiucky  Cent.  Ry.  Co., 

M8. 
Kdwanls  r.  ChU'lotlP,  etc.,  R.  Co.,  93. 
Kilwiiriln  r.  FciK'u-on,  441). 
KiJwiinlh  V.  Uniiiilbiil,  etc.,  U.  Co..ll:l. 
Edwards  c.  S.  Y.  eic,  Uy.  Co.,  103,  iu4, 

107,  '.'i.tt. 
Edwnrdflf.  Philadelphia  &  R.  U.  Co.,  65. 
KdwardH  v.  Ttiroo  Itlvors,  320. 
EhrKott  v.  Mayor,  elc.  New  York,  41, 

5iW. 

EhrlHinan  v.  Kast  Ilarrlsbarg  City  Pass. 

Kv.  Co.,  4;t'.». 
Elckel  V.  Senhenn,  489, 
ElKhiny  t'.  U.  P.  R.  Co.,  208. 
Klkt-nbcrg  v.  Kozaar,  137. 
Klder  r.  Lvkcim  Val.  Coal  Co.,  49. 
KIgIn  V.  Kliiibnll,  30>,  304. 
Elkhart  v.  Rliier,  30«. 
KlkiiiKton  r.  llullaud,  427,  438. 
Elklns  V.  Boston,  etc.,  U.  Co.,  503. 
Elklna  v.  McKoan,  13,  287. 
Ellet  V.  St.  Ix)ul8,  etc.,  R.  Co.,  391. 
Elliott  V.  City  of  Oil  City,  303. 
Elliott  v.  Kllchl.urg  U.  Co.,  97. 
KlUoit  V.  Hall,  11. 
Elliott  r.  Herz.  131. 
Elliott  V.  Newport  St.  Ry.  Co.,  377. 
Elliott  V.  St.  LouU,  etc..  R.  Co.,  .•>40,  .Vtl. 
Elliott's  Roads  &  stkekts,  so,  138, 

144,  30."),  SOti,  307. 
Elite  V.  American  Tel.  Co.,  694. 
Ellis  r.  Ut.  W.  Ry.  Co.,  25,  50. 
ElllB  r.  Lake  Sh..re  &  M.  S.  11.  Co.,  401*. 
EI118  r.  Mc.NuuL'hton,  223. 
E'Us  V.  Ohio  Life  Ins.  Co  ,442. 
Ellis  f.  ShellicId  Gas  Co..  221,  224. 
Elinendorf  r.  Lancing,  258. 
Elmore  i".  NauKaluck  R.  Co.,SfiO. 
Elster  V.  (  Ity  of  Springfield,  97. 
Elstonr.  Schilling,  430,431. 
Ely  I'.  l)i-8  Moines,  3iH. 
Ely  I'.  St.  Louis,  etc.,  R.  Co.,  391. 
Ely  v.  Thompson,  451. 
Klvt.in  Land  Co.  r.  MInpca,  489,  509. 
Ember  r.  Town  of  WallkeU,13«. 
Emblem  v.  Myers,  587. 
Enier.son  v.  Gas.  Co  ,  290. 
Emery  v.  Minneaiiolls  I.  Ex.,  72,  73. 
Emery  r.  Parrot t,  333. 
Emma  Silver  Mining  Co.  v.  Grant,  3,33. 
Emmerson  r.  St.  I.,. ma  &  U.  Ry.  Co.,  115. 
Emory  r.  Kddis,  41. 
Eii.ry  r.  RaleU-h  &  G.  R,  Co.,  138,489. 
Endora  r.  Miller,  144. 
Eniful  r.  Eureka  fMub,  215. 
Engel  r.  Smith,  2S0,  4S9. 
Engle  V.  Chicago,  etc.,  Ry,  Co.,  88. 
Enrlght  v.  San  Francisco.,  etc.,  R.  Co., 

116. 
Ensign  r.  County  of  Livingston,  145. 
K.  O.  Slanard  Milling  Co.  t- .  White  Line 

C.  T.  Co.,311. 
Erie  Rv.  Ci>.  r.  Txickwood,  SiiO. 
Erie  city  Pass   Uv.  Co.  r.  Schuster,  615. 
Ernst  I'.  Hudson  River  R.  Co.,  478. 
Erskine  v.  Adeane,  92,  105. 
Erwin  V.  RIake,  433,  43r). 
EstjIle  r.  l.ake  Cryatjii,  308. 
Eureka  Co.  v.  Bass,  495. 


Eureka  Fertlllicr  Co.  r.  n&ltlmore,  C.  8. 

A  R.  Co.,  588. 
European,  etc..  R.  Co.  r.  Poor,  824. 
Evans  v.  AiIuiiih  Exp.  (;o.,  478. 
Evans  v.  Cily  Cllea,  315, 
Evan.s  V.  DavNon,  2ol. 
EvanH  r.  Kllchburg  R.  Co.,  351.  852. 
Evaii-<  »V  Howard  F.  IJ.  Co.  v.  tsl.  L.,  etc,, 

R.   Co.,  502. 
Evans  r.  Intorstato  R.  T.  Ry.  Co.,  3»4. 
Evans  v.  Rudy,  691. 
Evans  r.  St.  Paul,  etc.,  R.  Co.,  117. 
Evans  r.  Watrous,  4.U. 
Evansichr.  G   C.  A  .S.  K.  Ity.  Co.,  275,  519. 
Evansvllle,  etc.,  R.  Co.  v.  Crlot.  141. 
Kvansville,  etc.,  R.  Co,  v.  Grinin,  75. 
Kvansvlllo,  etc.,  R.  Co.  v.  Hlatl,  4^8. 
Kvansville,  etc.,  R.  Co.  t*.  Kvie,  ii. 
Evansvllle,  etc.R.  Co.  r.  Mosier.  122,  2»5, 
Kvaiisvllle,  etc.,  R.  Co.  r.  WIIIih,  115, 
Evansvllle,  etc..  It.  Co.f.  Wilier,  318. 
Kvansville,  etc..  It.  Co.  r.  Wolf,  514. 
Kverett  v.  Hydraulic  Flume  Co.,5»2. 
Everett  v.  Southern  Express  Co.,  847. 
ICvers  r.  Hudson  River  Co.,  28. 
Kvers  v.  Weil,  107. 

Ewlngr.  North  Versailles  Tp.,  50, 109. 
Kwing  V.  Pillsburgh,  etc.,  R,  Co.,  35. 
K.xchange  Hank  v.  Sutton  Rank,  443. 
K\  parte  Itailoy,  229. 
Ev  parte  Rail,  549. 
K.v  parte  Helrhier,  2.59. 
Ex  parte  Gordon,  229. 
E.\  parte  Governors  of  Christ's  Uospllal, 

2t;5, 
Ex  parte  Hughes,  229, 
Ex  parte  Norrls.  2(j5. 
E.v  parte  Ogle,  257. 
Ex  parte  Orinerod,  229. 
Ex|>re8sCo.   t-.  Caldwell,  347, 848. 
Eycr  V.  Jordan,  102. 


F. 

Fabens  v.  Mercantile  Bank,  451,  452. 

Fabn  i-.  Rel(;hart,  bl. 

Fahnenstoek's  App..  255. 

Fail  V.  McArthur,  211. 

Fair  I-.  City  of  Philadelphia,  300,304. 

Falrehild  i.  Cal.  .stage  Co.,  392. 

Fairchlld  v.  Keith.  449, 

Falrfi.x  r  N    Y   Cent  ,  rtc,  R.  Co.,  3«.4, 

Faircrieve  i-.  Moberlv,31l. 

Fall  lawn  Coal  oo.  r.  City  of  Scranlon, 

300. 
Falrniount  R.  R.  r.  Stntlcr,  3f.S. 
Fake  V.  .Nddlcks,  129. 
Falk  V.  New  York,  S.  A  W,  R.  Co..  394. 
Fallon  f.  O'Unen,  127. 
Fairjoy  v.  .se;iles,  70. 
Fanning  r.  Long  Island  R,  Co,,  190. 
Farber  i-.  Mo.  Pac.  R.  Co.,  201. 
Parish  f.  Relgle,3'.»2. 
Farley  v.  (Miieng  •  Ry.  Co.,  4*4. 
Farlev  v.  IMckard.  129. 
Farlow  f.  Kelly.  378. 
Farmer  r.  Crosby,  12. 
Fanner's,    etc.,     Bank    v.    CbamplftlD 

Transp.  Co.,  345. 
Farmer  r.  Concord,  125. 
Farnworth  r.  ParkwooU,  413. 
Farr  f.  Grlffllh,  5i'2. 


622 


TABLE   OF   CITATIONS. 


References  are  to  Pages. 


Farrard  v.  Marshall,  6,  9. 

Farrant  v.  Barnes,  288,  457. 

Farris  v.  Habery,  '279. 

Fash  V.  Kavanaugh,  100. 

Faulkner  v.  City  of  Aurora,  306. 

Faulkner  v.  Wright,  337. 

Favre  v.  Louisville  &  N.  R.  Co.,  53,  378, 

471. 
Fawcett  v.  Dale,  450. 
Fawcett  v.  North  Midland  Ry.  Co.,  116. 
Fay  V.  Pacific  Imp.  Co.,  413,  417. 
Fay  V.  Parker,  491. 
Fay  V.  Town  of  Lindley,  141. 
Federal   Street,  etc.,  K.  Co.  v.  Gibson, 

474. 
Fcital  V.  Middlesex  Ry.  Co.,  480. 
Felburn  v.  Peoples  Palace  Car  Co.,  124. 
Fell  V.  Northern  Pac.  R.  Co.,  589. 
Fellows  V.  Gilbaber,  103. 
Fennell  v.  Segnin  Ry.  Co.,  288. 
Fenneman  v.  Holden,  465. 
Fenner  v.  Buffalo,  etc.,  R.  Co.,  341. 
Fenton  v.  Dublin  Steam  Packet  Co. ,,213. 
Feoffees  of  Heriot's  Hospital  v.    Ross, 

208. 
Fergusen  v.  Kinnoul  (Earl  of),  445,  604. 
Fergusons.  Columbus  &  R.  Ry.  Co.,  7S, 

514. 
Ferguson  v.  "Wilson,  324. 
Ferov.  Buffalo,  etc.,  R.  Co.,  90. 
Ferris  v.  Van  Buskirk,  116. 
Fetter  v.  Beal,  602. 
Fick  V.  Chicago  &  N.  W.R.  Co..  206. 
Ficker  v.  Jones,  129,  284. 

FlKLD  ON  COKPOKATIONS,  325,  326. 

Field  V.  Chicago,  etc.,  R.  Co.,  346,  504. 

Field  V.  L.  N.  W.  Ry.  Co.,  294. 

Filield  v.  New  York  L.  W.  R.  Co.,  373. 

Filby  V.Miller,  436. 

Filer  v.  New  York,  etc.,  R.  Co.,  380. 

Filliter  v.  Phlppard,  «1,  84. 

Finch  tJ.  Chicago,  etc.,  Rv.   Co.,  112,  122. 

Finch  V.  The  Lighter  Mystic,  491. 

Fiuk  V.  Missouri  Furnace  Co.,  513, 

Finn  v.  Adrian,  315. 

Finn  v.  Western  R.  Co.,  336. 

Finnegan  v.  Tp.  of  Foster,  134. 

Flnnegan  v.  Fall  River  Gas  Works  Co., 

290. 
Finney  V.  Curtis,  126. 
Firmstone  v.  Wheeley,  92. 
First  N:it.  Bank  v.  Allen,  442. 
FlrstNat.  Bank  v.  Fourth  Nat. Bank,  441. 
First  Nat.  Bank  v.  Meller,  441. 
FlrstNat.  Bank  v.  Sprague,  443. 
Fir-st  Nat.  Bank  v.  Stale  Bank,  442. 
First  Nat.  Bank  v.  Villegia,  8. 
First  Nat.  Hank  v.  Western  Union,  591. 
First  Nat.  Bank  Allentown  r.  Rex,  59. 
First  Nat.  Bank  Carlisle  v.  Graham,  59. 
First  Nat.  Bank  of  Greenfield  v.  Marieta, 

etc.,  R.  Co.,  363. 
Firth  V.  Bowling  Iron  Co.,  28.  92, 109. 
Fi.scher  v.  Hethrintlon,  436. 
Fish  V.  Kelly,  12,430. 
Fish  V.  Skut,  132. 
Fishery.  Clark,  130. 
Fishery.  Cook,  464. 
Fisher  v.  Janscn,  103,  596. 
Fislier  v.  Kelsev,  416,  417. 
Flsherv.  Kyle,  211,  481.  • 

Fishery.  Prowfio,  457. 
Fisher  V   The  Hrinton,  491. 
Fl8k  V.  Wait,  286,  478. 


Fitch  i:  Scott,  430,  431. 

Fitchburg  R.  Co.  v.  Sage,  339. 

Fitzgerald  v.  Berlin,  138. 

Fitzgerald  v.  St.  Paul,  etc.,  R.  Oo.,  112, 

115,514,  518. 
Fltzpatrick  v.  Fitchburg  R.  Co.,  519. 
Fitzsimnions  v.  Milwaukee  R.  Co.,  205. 
Flagg  V.  Chicago,  etc.,Ry.  Co.,  483. 
Flanders  V.  Meath,  463. 
Flanders  v.  Sherman,  434. 
Flannery  v.  W.  &  L.  Ry.  Co.,  523. 
Flannlgan  v.  American  Glucose  Co.,  77, 
Flattes  V.  Chicago,  etc.,  R.  Co.,  528. 
Fleck  V.  Fnrtone,  etc.,  R.  Co.,  54. 
Fleet  V.  Hallenkamp,  286. 
Fleischner  v.  Citizens  R.  E.  &  I.  Co.,  105. 
Flemings.  Pittsburgh,  etc.,  R.  Co.,  531. 
Fleming  v.   The  Manchester,  etc.,  Ry. 

Co.,  369. 
Fleming  v.  Texas  Loan  Agency,  540. 
Fletcher  v.  Fitchburg  R.  Co.,  506. 
Fletcher  v.  Rylands,  83,  92,  101,  275. 
Fletcher  V.  Smith,  29,  70,  100. 
Flick  V.  Pennsylvania  R.  Co.,  95. 
Fhnn  v.  Phila.,  etc.,  R.  Co.,  384. 
Flinn  V.  St.  John,  453. 
Flinn  v.  Wilmington,  etc.,  R.  Co.,  386. 
Flint,  etc.,  R.  Co.  v.  Lull,  120. 
Flori  V.  St.  Louis,  512. 
Florida  i\  Pullman  Palace  Car  Co.,  404. 
Florida  Ry.  &  Nav.  Co.  r.  Webster,  383. 
Florida  Southern  Ry.  Co.  v.  Hirst,  382, 

463. 
Flow  V.  Roberts,  103. 
Flower  V.  Bolingbroke,  434. 
Flower  V.  Railroad  Co.,  201. 
Flowers  V.  S.  East  Ry.  Co.,  336. 
Floyd  V.  Nagle,  429. 
Flynn  v.  Canton  Co.,  309. 
Flynn  v.  Kansas,  etc.,  R.  Co.,  494. 
Flynn  v.  Neosho,  314. 
Flynn  v.  San  Francisco  &  S.  J.  E.  Co.,  89, 
Foels  V.  TonawandH,  319. 
Fogerty  v.  Jordan,  4-28. 
Foley  V.  Chicago,  etc.,  R.  Co.,  493. 
Foley  V.  Troy,  311. 
Foley  r.  Wyeth,  6,  8. 
Follman  v.  Mankato,  469. 
Fones  V.  Phillips,  493. 
Forbes  Case,  444. 
Forbes  v.  Ross,  263. 
Force  V.  Gregory,  424. 
Ford  V.  Fitchburg  R.  Co.,  480,  495. 
Ford  V.  London  &  S.  W.  Ry.  Co.,  339,  395. 
Ford  V.  Monroe,  552. 
Ford  V.  Umatilla  Countv,  473. 
Fordham  v.  L.  B.  &  S.  C.  Ry.  Co.,  400. 
Fordyce  v.  McCants,  544. 
Fordyce  v.  Merrill,  391. 
Fordyce  v.  Withers,  374,  596. 
Foreman  v.  Pennsylvania  R.  Co.,  474. 
Forney  v.  Geldmacher,  32. 
Forshay  i\  Glenhaver,  143. 
Ft.  Clark  St.  R.  R.  v  Ebaugh,  378. 
Forton  V.  East  Hampton,  319. 
Ft.  Scott  W.  W.  Ry.  Co.  v.  Fortney,  373. 
Fortune  v.  Tralnor,  208. 
Fort  Wayne  V.  Coombs,  305. 
Ft.   Wayne,  C.  &  L.   Ry.  Co.   v.  Byerle, 

537. 
Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Floyd,  552. 
Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Greathouao, 

347,  352,  354.  ,       _. 

Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Meaeles,  78. 


TAIILK    OF    CITATIONS. 


6*23 


Reforoiicos  are  to  I'n^j^oH. 


Ft.  Worth  &  I).  C.  Uy.  Co.   r.  Itobcrtson, 

78. 
Foster  r.  Knnk  of  London,  444. 
KoHti-r  V.  Boston .  S.'.S. 
KoBtor  r.  Ksm'x   l(aiik,440. 
Korticr  V.  Oioildnril,  tj5. 
Ko'tor  r.  Jack,  4:V.'. 
Ko.ttcr  r.  Missouri  I'nc.  Uy.  Cc,  27. 
Koctir  f.  St.  Louis,  <;tc.,  K.  Co.,  111. 
Ko-ter  f.  Swopc,  4tll. 
Koster  r.  The  .Mlriiiuln,  401. 
Koulkos  V.  .Met.  Kv.  Co.,  *;;>.  38-2. 
Foulkes  r.  Niishvillc,  olc,  li.  Co.,  542. 
Kouiitaine  r.  Haxlov,  .Wi. 
Fowler  V.  IJallhnore  *  O.  U.  Co.,  472. 
Fowler  r.  (J.   W.  Ky.  Co.,  359. 
Fowler  f.  Lock,  2i:i. 
Fo.x  r.  Glasienbury,  473. 
Fox  V.  Jones,  4:!0. 
Fox  V.  LnnslnKhury,  82L 
Fox  r.  Sackett,  47S. 
Foxworthy  v.  llastlnji^B,  31L 
Foy  r.  L.  H.  &  S.  V,.  Uy.  Co.,  399. 
Fraler  f.  Sears  Water  Co.,  478. 
France  v  Gaudct,  3.')8. 
Francis  v.  Cockerell,  18,  220, 267,  279,  300, 

304. 
Francis  v.  Dubuque,  etc.,  U.  Co.,  341. 
Francis  r.  New  1  ork  .Steam  Co.,  4>Si». 
Francis  v.  St.  Louis  Transfer  Co.,  42. 
Francisco  v.  Troy  &  L.  It.  Co.,  377. 
Frank  r.  Chemical  Hank,  442. 
Franko  i-.  City  of  St.  LouU,  106. 
Frankhousor  v.  Cannon,  455. 
F.ankland  v.  Cole,  438. 
Franklin  r.  8.  E.  Uv.  Co.,  .543,  544. 
Franklin  Wharf  r.  I'ortland,  73. 
Fraweek  r.  Heard,  45:!. 
Fray  r.  Voules,  4.!t;,  439. 
Frazer  v.  South  &  N.  A.  R.  Co.,  4S0. 
Frazler  f.  Brown,  '.I7. 
Freeh  r.  I'hlladelphla,  etc.,  R.  Co.,  471. 
Fredericks  t'.  Illinois  Cent.  R.  Co.,7»),  77. 
Freeholders  of  Sussex  i'.  Strader,  135. 
Freeman  v.  Brehm,  437. 
Fhkeman  on  Juugments,  430. 
Freer  v.  Cameron,  72,  280. 
Fremont,  E.  &  M.  V.  H.  Co.  v.  Marley,  95. 
Fremont,  E.  &  M.  V.  U.  Co.  r.  I'ounder, 

llti. 
French  v.  Boston,  144. 
French  v.  Brunswick,  474. 
French  v.  Detroit,  etc.,  Uy.  Co.,  375. 
French  v.  Vix,  222. 

Frick  V.  St.  Louis,  etc.,  R.  Co.,  515,  653. 
Friend  t'.  Wood,  337. 
Frink  v.  Coe,  588. 
Frink  c.  Potter,  375,  4S5. 
Frltach  r.  Alleghencv,  142. 
Frost  t'.  Eastern  U.  Co.,  76. 
Front  r.  Plumb,  481. 
Fry  V.  Dubuque,  etc.,  U.  Co.,  .')96. 
Fulks  V.  St.  Louis  &  S.  F.  Uy.  Co.,  375, 
471. 
I   Fuller  V.  Bradley,  336. 
Fuller  V.  Citizens  Bank,  218. 
Fullerr.Ciiv  of  Jackson,  295,  599. 
;   Fuller  c.  CoHtes,  413.  414. 
I   Fuller  r.  .Jackson,  308,  318,  321. 
I    Fuller  V.  Oneal,2f(5. 

Fullerton  t'.  Kordvce,  394. 
i   Fulllam  r.  Muscatine,  31.S,  489. 
Fulton  r.  Uailroad  Co  ,517. 
Fulton  Co.  N.  G.  Uy.  Co.  v.  Butler,  503. 


Fulton  County  St.  U.  Co.  ,-.  McCoanell. 

215. 
Furley  r.  Chlcii(?o  M.  A  St.  P.  Uy.  Co..  130. 
Furnell  c.  8t.  Paul,  3iit'.. 
Furnish  c.  Mlsnourl  Pac.  Uy.  Co.,  37S, 
Furstonburg  v.  Fawsetl,  6W. 

G. 


C.&gK  V.  Vettcr,  85. 
(iahn  t'.  Otlumwa,  512. 
(iaillard  v.  Smart,  431. 
(ialena,  etc.,  U.  Co.  f.  Jacobs,  464. 
Galena,  etc.,  U.  Co.  v.  Yarwood,497. 
GalliiKher  r.  Bowie,  .173,  i-J-l,  393,  5'.'<$. 
lialliin'ier  c.  Monteclto  Val.  WnterCo.,96. 
(Jailajfher  t'.  Thom|>8on,  423,  428. 
Galilean  r.  Melaconiet  MIk.  ('o.,76. 
Gallin  r.  London  &  N.  W.  Ky.  Co..  S42. 
Galloway  r.  Chicago,  etc.,  Uy.  Co.,  3*). 
Galveston,  etc.,  U.  Co.  v.  Smith,  M.  367, 

379. 
Galveston  City  U.  Co.  r,  Hewitt,  520. 
Galveston,  IL  &,  IL  Uy.  (;q.  v.  Moore,  515. 
Galveston,  U.  ■&  S.  A.  Uy.  Co.  r.  DtiVld- 

son,  401. 
Galvef.ton,  U.  &  S.  A.  Uy.  Co.  r.  Ball, 

345,  35S. 
Galveston,  II.  &  S.  A.  Ry.  Co.  r.  Bowman, 

339. 
Galveston.  H.  &  S.  A.  Ry.  Co.  r.  Coskcll, 

603. 
Galveston,  U.  &  S.  A.  Ry.  Co.  r.  Davis, 

5.V2. 
Galveston,   II.  &  S.  A.  Ry.  Co.  r.  Daolm, 

aOO. 
Galveston,  fl.  A  S.  A.  By.  Co.  r.  John- 
son, 301. 
Galveston,  etc.,  R.  Co.  r.  I^aGlcrsc,  544. 
Galveston,  II.  «t.  S.  A.  IL  Co.  t-.  Kulnc, 

502,  540. 
Galveston,  II.  &  S.  A.  Ry.  Co.  r.  I^onard, 

545. 
Galveston,  II.  &  S.  A.  R.  Co.  r.  McMonl- 

gal,  207. 
Galveston,  II.  &  S.  A.  Ry.  Co.  r.  Matula. 

,501,  .5'.10. 
Galveston,  II.  AS.  A.Uy.Co.  r.  Uyon..502. 
Galveston,  II.  &  s.  A.  Uy.  Co.  <:  ^^hort,  :i'>i. 
Galveston,  II.  A  S.  A.  Uy.  Co.  c.   Sollg- 

niiin,  3.5'.i. 
Galvobtou,  II.  A  S.  A.  Ry.  Co.  r.  Sncad, 

384 
Galveston,  IL  A  S.  A.  Uy.  Co.  r.  Thorna- 

bcrry,  395.  iW<. 
Galveston,  II.  A  S.  A.  Ry.  Co.  r.  TuckoU, 

.'.'.» 1. 
Galveston,  II.  A  S.  A.  B.  Co.  r.  Waldo, 

37  L 
Galveston  Oil  Co.  v.  Morton,  74. 
Galvin  r.  City  of  New  Vork,  4.<». 
Gamlierl  v.  Hart,  427,  421*. 
Gandin  r.  (.'nrthage,  3il. 
Gandv  r.  Julitier,  101. 
(iardnerc.  Iietrolt  St.  Ry.  Co.,  598. 
Gardner  I-.  t;race,513. 
Gardner  r.  .Mobile  A  N.  W.  B.  Co.,  455. 
(iardncr  f.  Smith,  l(Rt. 
Garlleld  Mfg.  Co.  r.  .Mcl.can,  4ft4. 
(iarland  «•.  Towne,  W,  275. 
tiarrlKan  r.  Berry,  tJ5. 
Garrison  v.  Barnes,  125. 


624 


TABLE   OF   CITATIONS. 


References  are  to  Pages. 


GartelBcr  v.  Galveston,  etc.,  Ry.  Co.,  509. 
Garten  v.  Bristol  &  Ex.  Ry.  Co.,  :347. 
Garratt  V.  Trustees  of  Canandaigua,  304. 
Garrison  v.  Great  Northern  Railway,  99. 
Garside  v.  Trent  Navigation,  334. 
Garwood  «•  New  York  Cent.,  etc.,  R.  Co., 

97. 
Gary  v.  "Winter,  540. 
Gastenhoffer  v.  Clair,  418. 
Gates  V.  Fleischer,  426. 
Gates  V.  Penna.  R.  Co.,  143,  489. 
Gantret  v.  Egerton,  3, 18,  74,  79. 
Gavin  v.  Chicago  City,  145,  513,  514. 
Gawlrlg  V.  Leland,  97. 
Gayford  v.  NichoUs,  67,  224. 
Gaylord  v.  New  Brittaln,  311. 
Gaynor  V.  Old  Colony,  etc.,  R.  Co.,  394. 
Geddis  v.  Proprietors  of  Bann  Reservoir, 

298 
Gee  V.  Met.  Ry.  Co.,  24,  49,  400,  478,  487. 
Gee  V.  L.  &  Y.  R.  Co.,  358. 
Geer  v.  Darrow,  220. 
Geiselman  v.  Scott,  426. 
Gelsner  v.  Lake  Shore,  etc.,  Ry.  Co.,  356. 
Genning  v.  New  York,  etc.,  R.  Co.,  87. 
Genl.  Steam  Nav.  Co.  v.  British*  Colon- 
ial Steam  Nav.  Co.,  213. 
Geoghegan  v.  Atlas  S.  S.  Co.,  473. 
George  v.  Haverhill,  595. 
George  v.  St.  Louis  Ry.  Co.,  523. 
George  v.  Skivington,  11,  17. 
George  v.  Wabash  W.  Ry.  Co.,  96. 
Georgia,  etc.,  BankingCo.  v.  Rhodes,  4S6. 
Georgia,  etc.,  R.  Co.  v.  Fish,  121. 
Georgia,  etc.,  R.  Co.  v.  Gann,  344. 
Georgia,  etc.,  R.  Co.  v.  Kenny,  493. 
Georgia  Pac.  Ry.  v.  Davis,  470. 
Georgia  I'ac.  Ry.  Co.  v.  Hughes,  509. 
Georgia  Pac.  Ry.  Co.  v.  Underwood,  53, 

378,  506. 
Georgia  R.  Co.  v.  Beattie,  354. 
Georgia  R.  Co.  v.  Cole,  360. 
Georgia  R.  Co.  v.  Oaks,  546. 
Georgia  R.  Co.  v.  Spears,  351,  355. 
Georgia  R.  &  B.  Co.  v.  Berry,  602. 
Georgia  R.  &  B.  Co.  v.  Ellison,  371. 
Georgia  R.   &  B.  Co.  v.  Love  &  Good- 
Will  Soc,  442. 
Georgia  R.  &  B.  Co.  v.  Mayo,  49. 
Georgia  Southern  R,  Co.  v,  Neel,  595. 
Getty  r.  Devlin,  333. 
Gerlach  v.  Edelmeyer,  222. 
German  v.  Chicago,  etc.,  R.  Co.,  351. 
Germania  Bank  v.  Boutell,  442. 
German  Pass.  Ry.  Co.  v.  Walling,  52. 
Germantown  Pass.  Ry.  Co.  v.  Brophey, 

.53,  378. 
Gerstle  v.  Union  P.  Ry.  Co.,  461. 
Gibbon  V.  Biidd,  420,  601. 
Gibbons  v.  Pepper,  526. 
Gibbons  V.  The  Wisconsin  Valley  R.  Co., 

87  89 
Gibbons  v.  Wilkesbarre  &  S.  St.  Ry.  Co., 

486. 
Gibbons  V.  Williams,  514. 
Gibbs  V.  Cov  Kendall,  130. 
Gibbsr.  G.W.  Ry.  Co.,  235. 
Gibljs  V.   Mersey  Docks,  3, 134. 
Gibbs  i;.  Williams,  93. 
Glblln  V.  McMullen,  23,  440,  456. 
Giblln  V.  National  S.  S.  Co.,  352. 
Glbner  v.  State,  487. 
Gibson  v.  Coggin,  450. 
Gibson  V.  Delaware  &  H.  C.  Co.,  27. 


Gibson  V.  Johnson,  311. 

Gibson  V.  Leonard,  77. 

Gibson  V.  Preston,  134,136,  299. 

Gibson  t'.  Sziepienski,  77. 

Giddlngs  V.  Baker,  324. 

Gilberts.  Beach,  223. 

Gilberts.  Boston,  316. 

Gilbert «;.  Hoffman,  413,  418. 

Gilbert  v.  West  End  St.  Ry.  Co.,  374. 

Gilberts.  Williams, 429. 

Gile  V.  Libby,  413. 

Giles  V.  Boston,  etc.,  R.  Co.,  119. 

Gill  V.  Atlantic,  etc.,  R.  Co.,  110,  IIL 

Gillt'.  G.  E.  Ry.  Co  ,399. 

Gill  V.  Middleton,  24. 

Glllam  V.  Sioux  City,  etc.,  R.  Co.,  U9. 

Gillespie  v.  McGowan,  76. 

Gillespie  v.  St.  Louis,  etc.,  R.  Co.  392. 

Gillett  V.  Ellis,  337. 

Gillett  V.  Western  Ry.  Co.,  590. 

Gilliams  v.  South,  etc.,  Ala.  R.  Co.,  200, 

207. 
Gillmgham  v.  Ohio  River  R.  Co.,  206. 
Gillis  V.  Pennsylvania  R.  Co.,  279,  395, 
Gillison  v.  City  of  Charleston,  302. 
Gillrie  v.  Lockport,  311. 
Glllman  v.  Hovey,  430. 
Gilman  v.  Tilton,  97. 
Gilmer  v.  Atlanta,  321. 
Gllmore  v.  Driscoll,  6,7. 
Gllmore  v.  Philadelphia  &  R.  R.  Co.,  390. 
Gllmore  v.  Tuttle,  264. 
Gilson  v.  Collin,  252. 
Giraldo  v.  Coney  Island  &B.  R.  Co., 520. 
Girdwood  v.  N.  B.  Ry.  Co.,  391. 
Givens  v.  Briscoe,  433,  436. 
Givens  v.  Kentucky  Cent.  R.  Co.,  538. 
Glad  well  v.  Steggall,  11. 
Glanty  v.  South  Bend,  307. 
Glasier  v.  Town  of  Hebron,  55,  141. 
Glavin  v.  R.  I.  Hospital,  20S. 
Gleason  v.  Beers,  59. 
Gleason  v.  Bremen,  472. 
Gleason  v.  Dodd,  435. 
Gleason  v.  Goodrich  Transportation  Co., 
352. 

Gleason  v.  Smith,  62. 

Glenn  v.  Cuttle,  432. 
Glenn  v.  Jackson,  414. 

Glldden  .-.  Moore,  125,  128,  284. 

Glover  v.  Gray,  513. 

Glover  v.  Scotten,  461. 

Gluck  V.  Ridgewood  Ice  Co.,  73. 

Goddard  v.  Grand  Trunk  R.  Co.,  206. 

GoddanI  v.  Mcintosh,  479. 

Godeau  v.  Blood,  127. 

Godefroy  v.  Dalton,  439. 

Godefroy  v.  Jav,  438. 

Godfrey  v.  Fanlker,  2.56. 

Godley  v.  Hagerty,  103. 

Godwin  v.  Wilmington  &  W.  R.  Co.,  590. 

Goggin  V.  Kansas,  etc,  R.  Co.,  334,  314. 

Goldberg  v.  Schrayer,  496. 

Golden  v.  Clinton,  318,  321. 

Golden  ?).  Newbrand,  201. 

Goldsmith  v.  Chicago,  etc.R.  Co.,  361. 

Goldsworthy  v.  Town  of  Linden,  137. 

Good  V.  City  of  Altoona,  95. 

Good  V.  Galveston,  H.  &  S.  A.  Ry.  Co. 
354. 

Goodale  v.  Tuttle,  93. 

Goofle  V.  Martin,  131. 

Goodell  V.  Bluff  City  Lbr.  Co.,  591. 

Goodhue  v.  Dlx,  64,65. 


TABLE    OF   CITATIONS. 


625 


RefereiicoH  nr«'  to  Pukos. 


Goodin  r.  DcsMolnoa,  317. 

Uooding  r.  The  AtclilBou,  ctc.,K.  Co.,  120. 

Goudiiutu  f.  Gray,  l'J7. 

tiuoduian  v.  Oregon  Uv.  A  Nav.  Co.,  8.39. 

Uoodmun  v.  Walker,  4.'S,  4.'a. 

Good  DO  V.  O.shkoBli,  Sli."!,  ft'.KJ. 

Goodrich  r.  Fenn   ,  t-lc  ,  K    Co.,  62,  378. 

GoodHoii  r.  Des  Moint's,  '.Vi'i. 

Goodwin  r.  JtoHton  Jk  .M.  K.  U.,  52. 

Giioihvin  r.  Kaunas  Cxly,  etc.,R.  Co.,  I'^i. 

Goodwin  r.  NIckcrHon,  531). 

Goodwin  f.  .sione,  tV.K 

Gonzales  v.  N.  Y.  A  il.  R.  Co.,  54. 

Gordon  i:  Chicago,  37. 

Gordon  v.  Chicago,  etc.,  Ry.  Co.,  111. 

Gordon  c.  CuiuinlngM,  47!t. 

Gordon  v.  G.  W.  J{\ .  Co.,  :U7. 

Gontou  r.  Livingston,  13. 

Gordon  r.  Richmond,  306. 

Gorhain  c.  (iale,436. 

(iorham  i-.  Gross,  92,  219. 

Gorliam  v.  Kansas  City  &S.  Ry.  Co.,  697. 

GoirU  r     .Scott,  272,  323. 

Goshen  v.  Kugland,  321. 

Goellu  f.  Corey,  GO-2. 

Goss  f.  Ml.ssourl  I'nc.  Ry.  Co.,  542. 

Gothard  i:  Alabama,  etc.,  R.  Co.,  463,  498. 

Got'i.i)  ON  Waters,  93,98, 

Gould  r.  HiiiiK'or  &  V.  R.  Co.,  2S8. 

Gould  t'.  Cliajipell,  255. 

Gould  I'.  Mclvunna,  491. 

Gould  f.  .Slater  Woolen  Co.,  287. 

Governiiu'iii  St.  R.  Co.  v.  Uanlon,  514. 

Gow<^n  r.  Glaser,  S^!. 

(jral)ruc8  v.  Klein, 462. 

Grace  v.  Adams,  346. 

Gr.i(>tz  V.  McKenzio,  486,  540. 

Graff  r.  Hloomer,  337. 

Graham  r.  Burlington  C.  R.  &  N.  Ry.  Co., 

43. 
Graham  v.  City  of  Albert  Lea,  308. 
Graham  v.  Gautier,  422,  423. 
Graham  f.  NewburvOrrel  C.&C.  Co.,49C. 
Graham  v.  Tacillc  k.  Co.,  384. 
Graham  i'.  Payne,  284. 
Graham  f.  Pennsylvania  Co.,  461. 
Graham  v.  President,  etc.,  of  D.    &  IL 

Co.,  119. 
Gram  v.  Northern  Pac.  R.  Co.,  87. 
Grames  r.  Ilawley,  434. 
Gramm  f.  Hoener,  425. 
Grand  Kaplds,  etc.,  R.  Co.  r.  Cameron, 

119,12(1. 
Grand  Rapids,  etc.,  R.  Co.  i*.  Judson,  121. 
I    Grainl  UapIdH,  etc.,  H.  (."o.  v.  Monroe,  112. 
\   Granci  l{;ipids  &  I.  R.  Co.  r.  Co.\,  39. 
I   Grand  UtnldB  v.  Wyman,307. 
I   Graid  T.  W.  Ry.  Co.  v.  Davles,  889. 
I  Grand  Trunk  IJv.  Co.  r.  Ives,  4!>0. 
firangcr  v.  Hatchelder,  437. 

.iiiger  V.  Seneca  Falls,  307. 

Hit  V.  CItyof  Kltchburg,  514. 

iiilr.  Union  Pac.  Ry.  (.'o.,  .524. 
■'ot  r.  Missouri  I'ac.  R.  Co.,  501. 

'VC8  I'.  Glass,  592. 

iveSf.  Rochester,  301. 

'\  es  V.  '1  homa",  73,  75,  281. 

ives  V.  Shatiuck,  t;ti,  138. 
I  ivps  r.  Sirahan,  263. 

1<;ravett  v.  Manchester,  etc.,  R.  Co.,  64. 
Gray  v.  HotoukIi  of  Danbury,  143. 
Gray  r.  CItv  of  Emporia,  805. 
Gray  v.  Coombs,  80. 
Gray  v.  Uarris,  144. 


Gray  r.  McDonald,  6.19,  540,  548. 

Gray  v.  McWIlllamH,  93. 

Gray  r.  Merrlain,  Co. 

<iray  v.  S.  K.  Ry.  Co.,  407. 

Gray  v.  Pullen,  2^2:1,  272,  2^»2,  31S,  fl04. 

(iray  v.  Second  Avcnuo  K.  Co.,  2H). 

Gray  r.  Wass,  434. 

(Jrayson  v.  Wilkinson.  428. 

Great  Australian   Gold  Co.  r.  Ex  partO 

Applcyard,  332. 
(Jreal  .N.  Uy.  Co.  r.  Shepherd,  .3<i2. 
Great  W.  Ky.  Co.  r.  Kawcett, 300, .192,524. 
Great  Wesiern  Ky.  Co.  v.  liawkliir,  3.'>.<. 
Great  Western  R.  Co.  r.  Iluwi>rtli.  2,  »1. 
Great  Western  U.  (;o.  r.  Miller,  2o4. 
Great  Western  K.  Co.  r.  Morlblaiui,  528. 
Great  W.  Ky.  Co.  f.  Rlmmell,  341 
(ireat  Western  R.  Co.  t».  Miller, 'JOi. 
(Jredley  v.  City  of  Rlooinlngton,  311. 
Greeley  t'.  St.  Paul,  etc.,  Ry.  Co.,  115. 
Green  v.  Cross,  494. 
tireen  v.  Doyle,  125,  127. 
(ircen  v.  Hollingsworth,  265. 
Green  r.  Pennsylvania  R.  Co.,  394. 
Greene  v.  Minneapolis,  etc.,  li.  Co.,  494. 
Gregg  v.  Gregg,  109. 
Gregory  f.  I{rown,451. 
(iregory  v.  (Jrcgorv,  257. 
Gregory  r.  Ohio  Uiver,  R.  2f>6. 
(iregory  v.  Southern  I'ac.  Ky.  Co. ,.52. 
Gregory  v.  West  Midland  Ry.  Co.,    S4S, 

349. 
Gregory  f.  Williams,  602. 
Greenland  f.  <  haplin,  4l>2,  591. 
Greenleaf  r.  Francis,  97. 
Green  leaf    v.    Inhabitants  of    Karrldg- 

wock,  137. 
Green  Kidge  R.  Co.  r.  Rrlnknmn,  88. 
Greenwood  v.  Philadelphia,  W.  A  U.  R. 

Co.,  51. 
Greenwood  v.  Town  of  Westport,  144. 
Grles  V.  Zeck.  131. 
Grievand  f.  St.  Louis  C.  &  \V.  Ry.  Co., 

598 
GrilUn  r.  Chicago,  etc.,  Rv.  Co..  60*1. 
(Jrillllh  1-.  Kaltiinorc  A  O.'K.  Co.,  601. 
Grliliths  f.   Dudley,  '.'■Jf.,  22S,  2:11,  285. 
Grilliths  r.  Karl  of  Du<llev,  542. 
(;rlimii  V.  Ullca  A  M.  R.  to.,  698. 
(;rilliih8  t'.  Wolfram,  216. 
(;rlggs  f.  Flecklnsioln.  .38,482. 
Grill  r.  (Jencral  Iron  screw  Co.,  269,  270. 
Grimes  v.  Harrison,  331. 
(Jrimes  r.  Louisville,  etc.,  Ry.  Co.,  30. 
Grimes  t*.  I'ennsylvanla  Co.,  393. 
GrlnncU  v.  Cook,  412. 
Grlswold  r.  N.  Y.  A  S.  E.  R.  Co.,3.s<i. 
Grogan  r.  .Vdanis  Kxp.  Co.,  344. 
Gross  V.  I'ennsylvanla,  etc,  U.  Co.,  201, 

48.S. 
Grosscnbach  v.  City  of  MUwaokoc,  .'.II. 
(;ro-s(>  f.  Delaware,  etc.,  K.  Co.,  .V.o. 
Grostlck  r.  Detroit,  etc.,  R.  Co..  61,  499. 
Grosvonor  v.  N.  Y.  Cent.,  etc.,  IL   Co.. 

3t>3. 
Grote  r.  Chester  Rv.  Co.,  14.3,220,300,304. 
Grotenkemper  f.  flarils,  5:13,  544. 
Grovo  r.  Kansas,  309. 
GrovcrA  Uaker  Sewing  Machine  Co.  r. 

Missouri  Pacific  Ky.  Co..  .3flo. 
Grows  r.  Maine  Cenlral  K.  Co.,  51,  5oO. 
Grundy  f.  (  Ity  of  Janosvllle,  280. 
Guolo  V.  Mankato,  32'2. 
Guellch  V.  atatu  Uank,  443. 


40 


626 


TABLE   OF   CITATIONS. 


References  are  to  Pages. 


Gnlterman  v.  Sharvy.  451. 
Gulf.  C.  &  S.  F.  Ry.  Co.  v.  Box,  599. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  IJrown,   373. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  liuford.  im. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Danghank,  53. 
Gulf,  C.  &  S.  F.  Ry.  v.  Dunlap,  96. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Campbell,  383, 

602. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Clarke,  347. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Compton,  544, 

553. 
Gulif,  C.  &  S.  F.  Ry.  Co.  v.  Creeland,  502. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Eddins,  345. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Elliott,  354. 
Gulf,  C.  &  Santa  Fe  Ry.  Co.  v.  Evansich, 

78. 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Finley,  551. 
Gulf,  C.  &  S.  F.  R.  V.  Gasscamp,  146. 
Gu;f,  C.  &  S.  F.  Ry.  Co.  v.  Gatewood,  338, 

35b. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Gilbert,  359. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Glenk,  599. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ulgby,  374. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Hume,  354. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Insurance  Co., 

361. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Jackson,  367. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Johnson,  89, 

590. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Keith,  119, 591. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Levy,  598. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  McAuley,  354. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  McCarty,  354. 
Gulf,  C.  &  S.  F.  Ry.  v.  McGean,  90. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  McWhirter, 

78. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Montgomery, 

479. 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Moody,  204. 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Moore,  206. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Moss,  499. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Pendery,  509. 
Gulf,  C.  &  S.  F    Ry.  Co.  v.  Petiit,  359. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Rowland,  87. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Scott,  471,  474, 

501. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Shieder,  471, 

483. 
Gulf,  C.  &  S.    F.  Ry,  Co.  V.  Sonthwlck, 

541,545. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Steele,  96. 
Gulf,  C.  &  S.  F.  Ry.  Co.    v.   Stricklin, 

374. 
Gulf,  C.&  S.  F.  Ry.  Co.  v.  Styron,  78,  519. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Trott,  597. 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Vaughn,  354. 
Gulf,  C.  &S.  F.  Rv.  Co.  V.  Wallace,  113. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Wallen,  466. 
Gulf,  C.  &  8.  F.  Ry.  Co.  v.  Wilson,  385. 
Gulf,  C.  &  S.  F.  Ry.  v.  York,  504. 
Gulf,  W.  J.  &  P.  Ry.  Co.  V.  Abbott,  596. 
Gulline  v.  Lowell,  316. 
Gumz  V.  Chicago  Ry.  Co.,  485. 
Gun  V.  Ohio  River  R.  Co.,  520. 
Gunderson  v.  N.  W.  Elevator  Co.,  78. 
Gunterw.  I'.eard,  592. 
Gunter  v.  Wicker,  462. 
Guiiz  V.  Chicago,  etc.,  R.  Co.,  484,  486. 
Gurney  v.  Grand  Trunk  Ry.  Co.,  365. 
Guthrlei>.  Louisville,  etc.,  R.  Co.,  496. 
Gwathway  v.  lAtllo  Miami  R.  Co.,  106. 
<iwllllm  V.  Scholey,  449. 
Gwinnell  v.  Earner,  102. 
Gwynn  v.  Dufflcld,  286. 


H. 


Haas  V,  Chicago,  etc.,  R.  Co.,  503. 
Haas  V.  Grand  Rapids,  etc.,  R.  Co.,  498. 
Haas  V.  Kansas  City,  etc.,  R.  Co., 338. 
Haas   V.   Missionary    Soc.    Most    Holy 

Redeemer,  208. 
Hackett  v.  Louisville,  etc.,  Ry.  Co.,  538. 
Haden  v.  Clarke,  306. 
Hadley  v.  Baxendale,  357,  591. 
Hadley  v.  Taylor,  102. 
Haehl  v.  Wabash,  R.  Co.,  201,  204,  544. 
Hagen  v.  Chicago,  etc.,  R.  Co.,  86. 
Hager  v.  Southern  Pac.  C».,  501. 
Hahake  v.  Frederick,  125. 
Halle  V.  Texas  &  P.  Ry.  Co.,  45. 
Haire  v.  Kansas ,  309. 
Hale  V.  Smith,  473. 
Hales  V.  L.  &N.  Y.  Ry.  Co.,  357. 
Haley  V.  Mobile,  etc.,  R.  Co.,  550. 
Halifax  V.  Lordly,  218. 
Hallr.  Cheney,  338. 
Hall  V.   Connecticut   River   Steamboat 

Co     392 
Hall  i.  Cootmlre,  132. 
Hall  V.  Corcoran, 211. 
Hall  V.  Galveston,  etc.,fe.  Co., 552. 
Hall  V.  Manson,  314. 
Hall  V.  N.  E.  Ry.  Co.,  342,  386. 
Hall  V.  Renfro,  351. 
Hall  V.  Ripley,  480,  482. 
Hall  Safe  &  Lock  Co.  v.  Harwell,  437. 
Hally  V.  Bennett,  71. 
Halpin  v.  Kansas,  316. 
Halyard  v.  Dechelman,  60. 
Ham  V.  Newbery,  D.  &  C.  R.  Co.,  114. 
Hamburg  American  Packet  Co.  v.  Gatt- 

mann,363. 
Hamilton  v.  Boston,  481. 
Hamilton  V.  Delaware,  etc.,  R.  Co.,  475. 
Hamilton  v.  Feary,  108. 
Hamilton  v,  Hannibal  &  St.  Joe  R.  Co., 

538,  555. 
Hamilton  V.  Morgan's  L.,  etc.,  Co. ,513, 553. 
Hamilton  v.  Rich  Hill  C.  M.  Co.,  494. 
Hamilton  v.  Texas  &  Pac.  Ry.  Co.,  396. 
Hamilton  v.  Tyle,  454. 
Hamilton  Co.  Com.  v.  Mighels,  135. 
Ham  mack  v.  White,  525,  626, 
Hammond  v.  Melton,  283. 
Hammond  v.  Mukwa,  595. 
Hammond  v.  N.  E.  R.  Co.,  385. 
Hammond  r.  St.  Pancras, 293, 294, 296,300. 
Hammond  v.  Schlff,  588. 
Hampson  v.  Taylor,  34. 
Hampton  v.  Pullman  Palace  Car  Co.,  405. 
Hance  v.  Cayuga,  etc.,  R.  Co.,  120. 
Hance  v.  Pacific  Exp.  Co.,  338. 
Hancock  v.  Rand,  417. 
Handelun  v.  Burlington  C.  R.  &  N.  U. 

Co.,  48. 
Handfor  v.  Palmer,  57. 
Handybidc  r.  Powers,  108. 
Haney  v.  City  of  Kansas,  48,  300. 
Haney  v.  Pittsburgh,  etc.,  Ry.  Co.,  485, 

488. 
Hanley  v.  City  of  Huntington,  295. 
Hannem  v.  Pence,  71. 
Hannibal  v.  Kenny,  112, 121. 
Hannibal,  etc.,  R.  Co.  v.  Martin,  483.  596, 
Hannibal,  etc.,  R.  Co.  v.  Swift,  363,  364, 

365,  483. 
Hanover  R.  Co.  v.  Coyle,  598. 


TABLE    OF    CITATIONS. 


627 


References  are  to  Pages. 


Hanrahan  v.  Manhattan  Uy.  Co.,  375. 

IIiiiiHL'n  1'.  Chicttifo,  olc,  K.  Co.,  4M. 

MnnHforJ  f.  I'liyiu-, 'iSG,  547. 

llHiiBiiiun  r.  MiidlHUii,  :tl(i. 

llHiiHon  f    Warren,  ;{1 1. 

llllr(l(■,u^^tlo  f.  South  Yurks  Uy.,si. 

llarillnB  r.  TowntuMid,  .'i71. 

(lardy  r.  Clicsapeiike  Itank,  442. 

Hardy  r.  MlnneapullB,  554. 

Hardy  f.  Kyle,  ■2Z'.t. 

Hardy  v.  Veasy,  444. 

HarRreavea  r.  Deacon,  7ti. 

Harkness  r.  Hcauinion,  '255. 

Harlow  V.  Border,  44'.t. 

Harmon  t'.  Columbia  &  G.  11.  Co.,  37i. 

Harmon  v.  Washington  &  G.  U.  Co.,  470, 

Ilarncd  f.  Missouri  I'ac.  Uy.  Co.,:l54. 
Har|>er  r.  Krio  K.  Co.,  :{75. 
Har|icr  t'.  National  Life  Ins.  Co.,  437. 
Harper  r.  Newport  &  M.  V.  K.  Co.,  372. 
Harridan  v.  Cliy  of  Wilmington,  300,  304. 
IJurriman  r.  I'lttsburg,  etc.,  B.  Co., 2,  2G, 

i(i5 
Harriman  v.  Stone,  2.52. 
Harrington  r.  Hill,  4.'>3. 
Harris  f.  Cameron,  50. 
Harris  v.  Castjir,  'Mu. 
Harris  f.  Cohen,  l(i«,  108. 
Harris  f.  Gt.  W.  Ky.  Co.,  367. 
JIarrls  v.  Hannibal  &  St.  Joe  K.  Co.,  479. 
Harris  r.  Minneapolis  A  St.  I..  U.  Co.,4U9. 
Harris  r.  Mobb.",  28,  1,37,  141. 
Harris  f.  Mnrfrec,  455. 
Harris  r.  Nichols,  209. 
Harris  v.  Northern,  etc.,  R.  Co.,  352,  353. 
Harris  i'.  Kvding,  67. 
Harris  v.  Union  Pacific  U.  Co.,  38,461. 
Harris  v.  Waltc,  61. 
Harrison  v.  Gl.  N.  Uy.  Co.,  27. 
Harrison  r.  Kiser,  215. 
ila  rison  v.  London,  etc.,  K.  Co.,  343,  347, 

;54'.),  365. 
Harrison  r.  N.  E.  Uy.  Co.,  391. 
Harrison  v.  Uedden,  451. 

Hart  f.  Allen,  ,i,!7. 

Hart  r.  Hackner,  134. 

Hurt  r.  Ita.xendalc,  336. 

Hart  r,  Charlotte,  C.  &  A.  R.  Co.,  372, 695. 

Hart  f.  Cole,  103. 

Hart  r.  Delaware  L.  &  W.  Ry.  Co.,  483. 

Hart  f.  Frame,  438. 

Hart  V.  Hudson,  470. 

Hart  f.  Pennsylvania,  356. 

Hart  f.  Red  Cedar,  316. 

Hart  f.  Rvan,  216. 

Hart  r.  Skinner,  211. 

Bart  V.  The  Hudson  River  Bridge  Co., 
473. 

Hart  f.  Western  R.  Co.,  89. 

Hart  f.  W.  U.  Tel.  Co.,  59:5. 

Harlcr  v.  Morrl.s,  428. 

Harllleld  v.  Uoper.  516,  517. 

Hartl>;an  i\  Souihcrn  I'm:    R.  Co.,  5:{7. 

Harinian  r.  Mu-stailuc,  315,  479. 

Hartnell  r.  UvdoCommlssioncrs,  136,299. 

Harty  r.  Central  Uv.  Co.,  51. 

Uartzig  V.  Lehigh  Val.  R    Co.,  489. 

Harvey  v.  Terre  Haute,  etc.,  R.  Co.,  355. 

Hascom  v.  Boston,  309. 

Haisr.  Chicago,  etc.,  Ry.  Co.,  438. 
,    Basse  r.  American  K.xp.  Co.,  340. 

Ha-stlngs  V.  Halleck,  431.  434. 

Hastings  J-.  New  York,  etc.,  Ry.  Co.,  355. 


Hathaway  f.  FInkham,  127. 

Hathaway  f.  Toledo,  etc.,  R.  Co.,  472, 

llalhorn  c.  Klchmond,  42«i. 

Hatton  r.  llolnies,  442. 

llaiiKhey  t-.  Hart,  KJ. 

Hauku  V.  Hooper,  421. 

Hau.smar  v.  Madison,  311. 

Havorly  r.  S.  .•jUito  Lino  St  8.  R.  Co..  50. 

91. 
Haverson  v.  Minneapolis,  etc.,  Ry.  Co.. 

116. 
Ilawkcr  v.  Baltimore,  etc.,  R.  Co.,  HI. 
Hawks  r.  Northampton,  140. 
Hawkins  v.  <  oopor,  63. 
Hawkins  v.  Front  St.  (able  Ry,  Co.,  iVO. 
Hawkins  c.  Harwood,  4:i8. 
Hawkins  i\  Railroad  Co.,  353. 
Hawkins  f.  Ulley,  206. 
Hawkins  r.  The  \iola,  491. 
Hawkins  I'.  Walklns,  2. 
Hawley  r.  Corey,. 'i92. 
Hawloy  r.  .NewYork,  etc.,  R.  Co.,  494. 
Hawvcr  v.  Whalen,  224. 
Hayden  v.  Mnfg.  Co.,  493. 
Hayes  v.  Norcross,  5l:{. 
Hayes  r.  riilladelphla  A  R.  C.  &  I.  Co.^S. 
Hayes  r.  Williams,  .537,  W3. 
Hayne  i\  Rhodes,  4:18. 
Haynes  v.  Wabafh  R.  Co.,  353. 
lUysr.  Galnehvlllc  St.  Ry.  Co.,  520,  462. 
Hays  ?'.  Wabash  Ky.  t'o.,  375. 
Hay  ward  r.  Gold^burg,  43:1. 
Hayward  r.  Miller,  461. 
Hazard  I'owcler  Co.  t-.  V'olger,  S'.O. 
Hazard  f.  ( 'liy  of  Council  Iduffs.  295. 
Health  r.  Valentine,  105. 

Healy  r.  Gray,  412. 

Heaney  f.  Long  l.tland  R.  Co.,  505. 

Uearn  f.  I^)ndon  A  s.W.  Ky.Co.,335,  S43. 

Heaven  r.  IVnder,  11,  12,  36,  279,  287. 

Hccht  r.  Ohio  &  M    Kv.  Co.,  542. 

Hector  f.  Boston  K.  L.  Co.,  77. 

Heddles  v.  Chiiago  &  .\.  W.  Uy.  Co.,  SiW. 

Heilgi-s  f.  Kansas,  478. 

Hedrick  r.  llwaco  Ry.  A  Nav.  Co., 547. 

Heeg  V.  Luhl,  .S3. 

Heeslon  c.  City  of  Wilmington,  304. 

Hegeman  v.  U'eoiern  R.  Corp.,  274,  374. 

llegerlch  f.  Keddle,  .'>47. 

Ileidenheimerr.  Sides,  4.55. 

Helgel  r.  Wichita  County,  145. 

Hell  c.  Glaudllng.  &67. 

Helnrlch  f.  I'ullman,  etc.,  Co.,  20.5. 

Helssenbattel  r.  City  of  New  York,  73. 

Helzer  r.  Klng«'nnd,  12. 

Heland  i-.  Lowell,  482. 

Hemlling  r.  Cltv  of  (;rand    Rapids,  35. 

Henderson,  Hull  A  Co.  r.  I'htla  A  K.  Co.. 
86. 

Henderson  r.  Kentucky  C.  U.  ("o.,  5.18. 

Hcnderbon  r.  I.<>uisvillo  Klec.  R. Co.. 363. 

liender.Hon  v.  Miiith,  452. 

Henderson  r.  Stevenson,  367. 

HenderHholt  f.  <  Uv  of  Oitumwn,  !»J, 

Hendrlekir  r.  Meadown,  21*1. 

Hendrlckson  r.  Great  Northern  Ry.  Co., 
4'.«i. 

Hendrlckson  r.  Meadows,  489. 

HendrLx  v.  St.  Joseph  A  .St.  L.  Ry.  Co., 
111. 

Henkel  t:  Clly  of  Detroit,  138. 

Henkel  r.  .Murr,  Ua 

Henkes  r.  .Minneapolis,  31L 

Henning  f.  I'aldwell,  5l»5. 


628 


TABLE    or    CITATIONS. 


Refereuces  are  to  Pages. 


Henning  v.  Louisville  Leather  Co.,  538. 

Hennlng  v.  Western  Union  Tel.  Co.,5S8. 

Henry  v.  Central  R.  &  B.  Co.,  590. 

Henry  v.  Clayton,  430. 

Henrv  v.  Cleveland,  etc  ,  R.  Co.,  484,  487. 

Henry  v.  Df^nnis,  38,288. 

Henry  v.  Klapper,  599. 

Henry  v.  Koch,  7. 

Henry  v.  8t.  Louis  Ry.  Co.,  35. 

Henry  V.  Sprapal,  309. 

Henry  v.  Southern,  etc.,  R.  Co  ,46,  89. 

Henze  v.  St.  Louis,  etc  ,  Kv.  Co.,  51,  499. 

Hepburn  v.  City  of  Philadelphia,  218. 

Herlischr.  Louisville,  etc., R.  Co.,  51, 499. 

Herrv.  Atkinson,  453. 

Herr  v.  City  of  Lebanon.  35. 

Herrick  v.  Gary,  131. 

Herring r.  Wilmington,  etc.,  R.  Co., 51. 

Hcr-h  V.  Northern,  etc.,  R.  Co.,  339. 

llcrshberger  v.  Lynch,  474. 

Hershey  v.  Tp.  of  Mlllcreek  (Pa.),  503. 

Hcfke  V.  Samuelsou  &  Co.,  229. 

Hess  V.  Lupton,  92 

Hesser  v.  Grafton,  314. 

Hester  v.  Wilkinson,  257. 

Hetherington  v.  N.  E.  Ry.  Co.,  542. 

Hett  V.  Puru  Pong,  434. 

Heugh  V.  L.  &  N.  W.  Ry.  Co.,  334. 

Hewesi'.  McNamara,  129. 

Hewettv.  Swift,  252. 

Hewey  4?.  Nourse,85,  89. 

Hewiston  v.  City  of  New  Haven,  305. 

Hewitt  i\  Eisenbart,  423. 

Hexaiufre  v.  Webb, 216,  221. 

Hibbard  v.  Thompson,  426,  491,492,  493. 
Hibernia  Bldg.  Assoc,  v.  McGrath,59. 
Hickey  v.  Boston,  etc.,  R.  Co.,  52,  376, 
381,  382. 

Hickey  v.  Merchant's  &  M.  T.  Co.,  212. 

Hicks  V.  Newport  Ry.  Co.,  571. 

Hicks  V.  Pacific  R.  Co.,  471. 

Hicatt  v.  Morris,  7. 

Higgins  V.  Cherokee  R.  Co.,  458,  479. 

Higgins  V.  Deeney,  517. 

Higgins  V.  Dewey,  81. 

Higgins  V.  Hannibal,  etc.,  R.  Co.,  541. 

Iliggs  V.  Mavnard,524. 

Hill  V.  Applegate,  284. 

Hill  V.  Boston,  etc.,  H.  Co.,  135,345. 

Hill  V.  Fond  du  Lac,  308,  312. 

Hill  V.  Livingston,  145. 

Hill  V.  New  Haven,  474. 

Hill  V.  New  River  Co.,  27,  313. 

Hill  V.  Portland,  etc..  R.  Co.,  321. 

Hill  V.  Rinney,  438. 

Hillr.  Wlnsor,  27. 

lliller  r.  Ivy,  433. 

Hilliard  V.  Chicago,  etc.,  R.  Co.,  116. 

Hilliard  v.  Richardson,  224. 

Hlllis  V.  Chicago,  etc.,  R.  Co.,  59. 

Ilillyardw.  Crablree,  60. 

Ililwenbeck  v.  Guhrlng,  102. 

Hilton  V.  Adam-,  412. 

Hilton  V.  Earl  Granville,  66 

Hilton  V.  Whitehead,  6R. 

Hinckley  jj.  Cape  Cod  R.  Co.,  472. 
HlnckU-y  V.  Penobscott,  40. 
HInckle  v.  Railroad  Co.,  .WO. 
Hinckle  V.  Richmond  &  D.  R.  Co., 51. 
Hinds  V.  Overacker,  253. 
Hlne  V.  Gushing,  83. 
Hines  v.  Mo.  Pac  R.  Co.,  123. 
Hinckley  v.  Penobscott,  481. 

Hinkley  i-.  Krug,  428. 


Hlnkley  v.  St.  Anthony  Falls,  etc.,  Co., 

434. 
Hinnian  v.  Chicago,  etc.,  K.  Co.,  119. 
Hinshaw  v.  Arden,  58. 
Hintonv.  Dlbbin,354. 
Hinz  V.  Starin,  480. 
Hipkins  v.  Birmingham  Gas  Co.,  289. 
Hipsley  V.  Kansas  City,  etc.,  R.  Co.,  527. 
Hirschberg  v.  Dinsmore,  348,  .3.54. 
Hirschon  v.  American  Packet  Co.,  364. 
Hissong  V.  Richmond  &  D.  R,  Co.,  206. 
Hitchcock  V.  Burgett,  423 
Hitchcock  w.  Galveston,  592. 
Hitchcock  V.  McGehee,  434. 
Hixon  V.  Lowell,  305. 
Hoadley  v.  Northern  Transp.  Co.,  338, 

344,  471. 
Hoag  V.  Lake  Shore,  etc.,  R.  Co.,  46. 
Hobbold  V.  Chicago  S.  R.  Co.,  489. 
Hobbst'.  L.  &  S.  \V.  Ry.  Co,  28. 
Hoboken  L.  &  J.  Co.  v.  Lally,  465. 
Hobson  V.  City  of  Philadelphia.  301. 
Hobson  V.  New  Mexico  &  A.  R.  Co.,  470, 

478. 
Hoby  V.  Built.  425,  434. 
Hocum  V.  Weitherick,  471. 
Hodgenv.  New  England  Screw  Co.,  326. 
I  Hodgson  V.  Lynch,  448. 
Hodgson  z;.  York,  299. 
Hodnett  V.  Boston  .v  A.  R,  Co.,  541,  551. 
Hodyman  v.  West  Mid.  Ry.  Co.,  352. 
Hoehn  v.  Chicago,  etc.,  Ry.  Co.,  489. 
Hoey  V.  Natick,  317. 
Hofi  V.  West  Jersey  R.  Co.,  86. 
Hoffman  v.  Chicago,  etc.,  Ry.  Co.,  90. 
Hofiman  v.  Metropolitan  St.  Ry.  Co., 590. 
Hoffman  v.  N.  Y.  C.  R.  Co..  204. 
Hofnagle  v.  R.  R.  Co..  37. 
Hogan  V.  Kentucky  Union  Ry.  Co.,  117. 
Hogan  V.  Manhattan  Ry.  Co.,  531. 
Hogan  V.  S.  E.  Bv.  Co.,  389,  390. 
Hogan  V.  Tyler  (Virginia),  502. 
Hogenson  v.  St.  Paul,  etc.,  R.  Co.,  93.  94- 
Hogg  V.  Martin  Blley,  429,  431. 
Hogue  V.  Chicago  &  A.  R.  Co.,  651. 
Holbert  v.  Montgomery,  435. 
Holbrook  v.  Utica,  etc..  R.  Co..  53,   378. 
Ilolcome  V.  Danby,  40,  481. 
Holder  v.  Chicago,  etc.,  R.  Co.,  118. 
Holder  v.  Soulby,  411. 
Holdsworth  v.  City  of  Glasgow  Bank, 

332. 
Hole  V.  Slttingbonrne  Ry.,  223,292,313. 

Holker  V.  Parker,  436,  437,  438. 

Holland  v.  Brown,  545. 

Holland  v.  Chicago,  etc.,  R.  Co.,  501,  502. 

Holland  v.  Lvnu,  535. 

Holley  V.  Town,  etc.,  301. 

Hollister  v.  Nowlen,  316,  393. 

HoUoway  v.  Lock))ort,  314. 

Holly  V.  Boston  G.hs  Co.,  290,  517. 

Ilolman  v.  Chicago,  etc.,  R.  Co.,  504. 

Holmes  v.  Atkinson,  etc.,  R.  Co.,  2. 

Holmes  v.  Fond  du  Lac,  599. 

Holmes  V.  Halde,  422. 

Holmes  V.  Mather,  130. 

Holmes  v.  N.  E.  Ry.  Co.,  279,  28L 

Holmes  v.  Northwestern  Ry.,71. 

Holmes  v.  Onion,  214. 

Holmes  v.  Oregon,  etc.,  Ry.  Co.,  544,  S5J. 

Holmes  v.  Rogers,  437. 

Holmes  v.  South  Pac.  Ry.  Co.,  46S. 

Holt  V.  Spokane  &  P.  Ry.  Co.,  552. 

Holton  V.  Daly,  547. 


tahtj:  ok  citations. 


r,29 


RcforoiicpH  nrp  to  Papcs. 


llolzab  r.  New  OrlonnH,  etc.,  U.  Co.,  50U. 

■  Ionian  r.  SUinh-y,  H2,  271. 

HomiT  V.  Tliwinj:,  I'll. 

iloinincrt  v.  (ilenson,  451. 

Moneyiniin  r.  Ori'non  &  C.  R.  Co.,  352. 

Hood  i\  lirlincH,  422. 

Hooker  v.  Miller,  80. 

IIook8ett  r.  Com-ord  U.  Co.,  89. 

Hope  f.  Troy  &  L.  K.  Co..  493. 

Hopes  f.  Chlcatfo,  etc..  Kv.  Co.,  385. 

HopK'ood  r.  I'lirkin,  2:i8,  45s.     • 

Hopkins  t'.  Alljinllc.  elc.  K.  Co.,  589. 

Hopkins  f.  Town  of  Hush  River,  137. 

Hopkln.s  V.  Westoolt.  34;4. 

Hopkins  V.  AVIlliird,  4:!(i. 

Hopper  r.  L&  N.  11.  I£v.  Co.,  3R3. 

Hopplnp  r    (.)ulnn.  4:«).  432. 

Horn  r.  r.iilllmore  &<).  U.  Co.,  472,  501. 

Horn  r.  Midland  Rv.  Co..  342,358. 

Horn  Sliver  Mm.  Co.  v.  Ryan,  324. 

Hornbeln  r.  Rlanehard,  120. 

Horiic  r.  Pndll,  4.)1. 

Horner  r.  Harvey,  418. 

Horner  r.  Watson,  t». 

ilorsely  f.  I!raiich,211. 

llorton  V.  Sullivan.  94. 

Hotli  r    Peters.  472. 

Hougli  V.  Railway  Co.,  172,  494,  493,  496. 

Houghkirk  r.  Delaware  &  iiud.  Canal 

Co..  .MS. 
Houfrliiallng  i:  Shelby,  139. 
Houghton  V.  Chicago  &  G.  T.  Ky.  Co., 

.V»5. 
nounscll  f.  Smith.  74.  80. 
Honrl.:un  v.  Newell,  13. 
Hourney  r.  Brooklyn  City  R.  Co.,  52,  377. 
Ilousutonic,  etc.,  R.  Co.  v.  Knowles,  112, 

121. 
House  r.  Metoalf,  103.  .321. 
Housec  r.  Hammond,  60:1. 
Houseman  f.  Glrard  IJldg.  Co.,  12,450, 

4.VJ. 
Houser  f.  Tully,  412.413,  414. 
Houston  r.  CInciunail,  etc.,  R.  Co.,  110. 
Hiuston  V.  Isaacs,  319. 
Houston  r.  Traphagan,  300. 
Houston  V.  Wandelohr.  452. 
Houston  City  St.  Ry.  Co.  v.  Rlchart,  515. 
Hons'OD,  etc.,  Ry.  Co.  r.  Raker.  .544. 
Houston,  etc.,  R.  Co.  t'    Hocbm.  .595. 
Honston,  etc  ,  R.  Co.  r.  Burke,  690. 
Houston,  etc.,  R.  Co.  r.  Carson.  406. 
Houston,  etc.,  11.  Co.  f.  Clemmons,  3C1, 

382. 
Honston.  etc.,  R.  Co.  r.  Cowser,  .541. 
Houston,  etc..  R.  Co.  v.  (Jorbeit.  460. 
HouHton,  etc.,  R.  Co.  v.  Ham,  336. 
Houston,  etc.,  R.  Co.  v.  HolUs,  493. 
Houston,  etc.,  R.  Co.  v.  I-csllo,  44,  379. 
Hou.ston,  etc.,  R.  Co.  v.  Moore,  3S.3. 
Houston,  etc.,  R.  Co.  r.  Simpson.  78,510. 
Houston,  etc.,  Ry.  Co.  r.  Sympklns,  5.', 

603. 
Houston,  etc.,  R.  Co.  v.  Willie,  C02. 
Honston,  etc.,  Ry.  Co.  r.  Wilson,  51. 
Hover  r.  Pennsylvania  Co.,  555. 
Howard  r.  Babcock,  .59,  265. 
Howard  r.  (irover,  422,  423. 
Howanl  r   Kannas  City,  etc.,  R.  Co.,  465. 
Iloward  ( 'o.  Com.  r.  I-f  gg,  543. 
Howard  Oil  Co.  r.  Davis,  602. 
Howe  Machine  Co.  r.  I'easo,  411. 
Howe  V.  Newmarch,  204 
.  Howe  r.  New  Orleans,  305. 


Howe  f.  ohmart,  3S.  72,  278. 

Howell,  Jewelt  A  Co.  r.  Cryl  A  Co.,  486. 

Howlund  V.  Vincent,  81.  1*3. 

Howser  v.  Cumberland  A  P.  U.  Co.,  SSI. 

Howth  I-.  Franklin,  411. 

Hoylo  V.  PlailHburK,  K24. 

HoVt  r.  Hudson,  03.  01. 

Hubbard  r.  Boston  A  .\.  R.  Co..  504. 

Hubbard  v.  Harudon  Expreast  Co.,  S88, 

338. 
Hubbard  t'.  Phillips.  430. 
Hubbant  v.  Webster,  94. 
Hubbell  r.  Bl«ndy.59. 
Ilueklo  V.  Money,  587. 
HuckHholdr    St.  Louis,  etc.,  Ry.  Co.,  465. 
Hudson  r.  Houhit.  r>54. 
Hudson  r.  Inhabitants  of  Marlboroagh. 

141,  317. 
Hudson  V.  Northern  Pac.  R.  Co.,  344,  359. 
Hudson  r.  Roberts. 2H5. 
Hudson  I-.  Wnba..h  W.  Rv.  Co..  471. 
Hudston  V.  .Mid.  Ry.  Co.,:«32. 
Uucrzoler  r.  Central  Cross  Town  ILCo., 

40. 
Huey  r.  Gahlenbeck,  2S0. 
Huff  !•.  Ames.  515. 
Huff  f.  Ford,  210. 
Huffman f.  San  Joaqnin.  145. 
Hughes  V.  Cinrlnnatl,  eic.  R.  Co.,  217. 
Hughes  r.  Fonddu  Lae,  3H. 
Hughes  r.  Hannibal,  etc..  R.  Co.,  118. 
Hughes  f.  Lawrence,  311. 
Hughes  V.  McCov,  451. 
HuKhes  r.  Maclle,  4iW.  515,  .517. 
Hughes  r.  Orange  Co.  M.  Ah8oc,82. 
Hughfs  r.  Perdval,  5.214,220. 
Hughes  r.  Ouenlln,5'.iO. 
HuKhes  r.  Railway  Co.,  21S,  224,  292. 
Hughes  r.  W.  V.  Tel.  (^o..  .503. 
Hughlett  r.  Loul-tvllle  A  N.  R.  Co., 54, 379. 
Hulbert  r.  Cliy  of  Topekn,  545. 
Hulehan  r.  Green  Bav.ctc.,  R.  Co.,  001. 
Hulettf.  Swift.  411.  412. 
Hulse  r.  N<w  Vork.  etc.,  R.  Co.,  13. 
Hume  V,  01dacrc,6<>4. 
Humphreys  v.  County,  144. 
Humphreys  v.  Perry,  ZiVi. 
Humphries  r.  Armstrong  Co.,  479. 
Humphries  i;.  Brogden.OG. 
Hun  f.  Carv.324. 
Hunt  I'.  Lowell  Gaa  Co.,  200,  491. 
Hnntr.  Mo.  R.  Co.,  :«. 
Hunter  r.  Burlington,  etc.,  Ry.  Co.,  110. 
Hunter  r.  Calilwell,  4;«. 
Hunter  v.  Columbia,  N.  A  1*  R.  Co..  86. 
Hnntcr  f.  Coopurtown,  etc.,  U.  Co.,  375, 

376, 475. 
Hunter  v.  .'Southern  Pac.  Ry.  Co.,  SCO. 
Huntington  r.  Breen,3u8. 
Huntington,  etc  .  R.  Co.  v.  Decker.  541 
Huntlev  v.  IUiIwcr.4:W. 
Hurd  i\  Rutland,  etc..  R    Co.,  111. 
IIundbauTn  v.  Bond.  141. 
Hurst  V.  Detroit  City  Ry.,  543 
Hurt  V.  St.  Louis,  etc.,  Ry.  Co.,  465. 
Hurt  f.  St.  Paul,  M.  A  .M.  Rv.  «  ■>..  US. 
Huse  A  l/oomis  1<'<>  Co.  «•.  llolnce.  M«. 
Husscy  f.  King.  1:12. 
Hussey  f   Rvnn.  106.519. 
Huston  V.  Mitchell.  4.W. 
HutclilngH  I-.  \Ve»tern.  Elv..  Ry.  Co..  Ml. 
HutchiiiHon  r.  Bank  of  Whocllug.  i48. 
Hutchinson  v.  Boston  G««  Light  Co.,SB». 
HDTCUIN8UN  OS  CARKIEKS,  4U1. 


630 


TABLE    OF    CITATIONS. 


References  are  to  Pages. 


Hutchinson  v.  Concord,  306. 
Hutchison  V.  Cunimings,  103. 
Hutchinson  v.  New  York,  New  Castle, 

&  Berwick  Ky.  Co.,  252. 
Hutchinbon  v.  Olympia,  306. 
Hutchison  v.  Kallroad  Co.,  3S7. 
Hutchison  r.  St.  Paul,  etc.,  Ky.  Co.,  543. 
Iluxamr.  Tiiom8,2'29. 
Hyamst'.  Micliel,  435. 
Hyamsi'.  Webster,  223. 
Hyatt  V.  Adams.  546,  548,  599. 
Hyde  V.  Jamaica,  135,  474. 
Hyde  v.  Mersey  Nav.  Co.,  411. 
Hydraulic  Works  Co.  v.  Orr,  78,  288. 
Hyman  v.  Central  Vt.  K.  Co.,  366. 
Hyman  v.  Nye,  368. 
Hyrne  v,  Erwin,  426. 


I. 

Ihl  V.  Forty-second  St.,  etc.,  R.  Co.,  514, 

543. 
Ihmsen's  App,  263. 
Illidge  V.  Goodwin,  31. 
Illinois  Central  K.  Co.  v.  Adams,  344. 
Illinois,  etc.,  R.  Co.  v.  Abel,  375. 
I.  P.  &  C.  R.  Co.  V.  Alien,  353. 
Illinois  Cent.  R.  Co.  v.  Axley,  383. 
Illinois  Cent.  R.  Co.  v.  Barron,  371. 
Illinois,  etc.,  R.  Co.  v.  Buckner,  502. 
Illinois  Central  R.  Co.  v.  Bui),  111. 
Illinois  Cent.  R.  Co.  v.  Copeland,  366. 
Illinois,  etc.,  R.  Co.,  v.  Cragin,  503. 
Illinois  Cent.  R.  Co.  v.  Davidson,  470. 
Illinois  Cent.  R.  Co.  v.  Dick,  465,  482. 
Illinois  Cent.  R.  Co.  v.  Downey,  205, 
Illinois  Cent.  R.  Co.  v.  Fishell,  .500. 
Illinois  Cent.  R.  Co.  v,  Frankenberg,  346, 

366. 
Illinois  Cent.  R.  Co.  v.  Frazier,  80. 
Illinois,  etc.,  R.  Co.  v.  Green,  381. 
Illinois  Central  R.  Co.  v.  Hall,  353 
Illinois,  etc.,  R.  Co.  v.  Hammer,  589. 
Illinois  Central  R.  Co.  v.  Haynes,  352. 
Illinois  Cent.  R.  Co.  v.  Hunter,  539. 
Illinois  Cent.  R.  Co.  v.  Kerr,  360. 
Illinois  Cent.  R.  Co.  v.  King,  214. 
Illinois  Central  R.  Co.  v.  Larson, 462. 
Illinois  Cent.  R.  Co.  v.  McKay,  91, 117. 
Illinois  Cent.  R.  Co.  v.  I'endergrass,  550. 
Illinois  Central  R.  Co.  r.  Phillips,  288. 
Illinois  Central  R.  Co.  v.  Reed,  385,  386. 
Illinois  Cent.  R.  Co.  v.  Ross,  210. 
Illinois  Cent.  R.  Co.  v.  Scrngg.s,  351. 
Illinois,  etc.,  R.  Co.  v.  Stables,  506. 
Illinois  Central  R.  Co.  v.  Trowbridge,  121. 
Illinois,  etc.,  R.  Co.  v.  Wilcox,  360. 
llottv.  Wilkes,  286. 
Iinhoffj;.  Chicago,  etc.,R.  Co.,  393. 
In  Aurora  v.  Love,  304. 
Inderkirkr.  Central  Nat.  Bank,  59. 
Independence   Mills  Co.  v.  Burlington, 

etc.,Ry.  Co.,  336. 
Indermaur  v.  Dames,  18,  62,  71,  211, 279. 
Indiana  I.  &  I.  Ry.  Co.  v.  Dooling,  118. 
Indiana  Central  R.  Co.r.  Mundy,385,  386. 
Indiana,  B.  &  W.  Ry.  Co.  v.  Overman,  87. 
Indiana  &  I.  S.  R.  Co.  v.  Sami>aon,  112. 
Indiana,  etc.,  R.  Co.  v.  Leak,  115. 
Indianapolis   Water    Co.    v.    American 

Htrawboard  Co.,  97. 
Indianapolis,  etc.,  R.  Co.  v.  Candle,  121. 


Indianapolis  v.  Doherty,  140. 
Indianapolis,  D.  &  W.  Ry.  Co.  v.  For- 

sythe,  344. 
Indianapolis  v.  Gaston,  595,  596. 
Indianapolis,  etc.,  R.    R.  Co.  v.  Guard. 

118. 
Indianapolis,  etc.,  R.  Co.  v.  Hall,  112. 
Indianapolis,  etc.,  R.  Co.  v.  Horst,  384. 
Indianapolis,  etc.,  R.  Co.  v.  Means,  528. 
Indianapolis,  etc.,  R.  R.  Co.  t>.  Oestel,12L 
Indianapolis,  etc.,  Ry.  Co.  v.  Ott,  495. 
Indianapolis,  elc,  Ry.  Co.  v.  Pltzer,  520. 
Indianapolis,  etc.,  Ry.  Co.  v.  Rutherford, 

52,  378. 
Indianapolis,  etc.,  R.  Co.  v.  Shriner.  110. 
Indianapolis,  etc.,  R.  Co.  v.  Smith,  60.'>. 
Indianapolis,  etc.,  R.  Co.  v.  Stout,  487^ 

506,  538. 
Indianapolis,  etc.,  R.  Co.  v.  Strain,  3.53. 
Indianapolis,  etc.,  R.  Co.  v.  Thomas,  113. 
Indianapolis  &  St.  L.  Ry.  Co.  v.  Watson^ 

495. 
Indianapolis,  etc.,  R.  Co.  t'.  Yuntgen,356. 
Inhabitants  of  West  Orange  v.  Field,  302. 
Ingle  V.  Partridge,  265. 
Ingram  v.  Barnes,  229. 
Ingram  v.  Lawson,  602. 
Ingram  v.  Rankin,  590. 
Ingwersen  v.  Rankin,  105. 
Inland  &  Seaboard  Coasting  Co.  f.  Tol- 

son,  466,  472. 
Inman  v.  Chicago,  etc.,  R.  Co.,  119. 
In  re  Blauvelt's  Kstate,  263. 
In  re  Bolton,  438. 
In  re  Cardiff  Sav.  Bank,  329. 
In  re  Craven,  263. 
In  re  Denliam  &  Co.,  332. 
In  re  Godfrey, 255. 
In  re  Government  Security  Co.,  332. 
In  re  Knight's  Estate,  258. 
In  re  McLaren,  334. 
In  re  Pearson ,  255. 
In  re  Spencer,  438. 
In  re  Shepard,549. 
In  re  United  Service  Co.,  440. 
In  re  Whitecar's  Estate,  258. 
International  &  G.  N.  R.  Co.  v.  Ander- 
son, 338,  347.  361. 
International  &  G.  N.  R.  Co.  v.  Cooke, 

113,121. 
International  &  G.  N.  R.  Co.  v.  Dlmmltl 

Co.  P.  Co.,3,'53. 
International  &  G.  N.  Ry.  Co.  v.  Dyer, 

501. 
International  &  G.  N.  R.  Co.  v.  Folllard, 

363. 
International  Ry.  Co.  v.  Halloren,  390, 

391. 
International  &  G.   N.  Ry.  Co  v.  Has- 

sell,  380. 
International  &  G.  N.  R.  Co.  v.  Hynes, 

337. 
International  &  G.  W.  R.  Co.  v.  Irvine, 

383. 
International,  etc.,  R.  Co.  v.  Kindred, 

550. 
International  &  G.  N.  Ry.  Co.  v.  Kuehn,. 

500,  640,  542. 
International  &  G.  N.  R.  Co.  ».  McDon 

aid,. 544. 
International  &  Gt.  N.  R.  Co.  v.  Moody, 

372. 
International  &  G.  N.  R.  Co.  v.  Ncfl, 

499. 


TAHLi:    OF    CITATIONS. 


r,3i 


Reft'rencpH  ure  to  Tutjes, 


International  &  G.  N.  Ry.  Co.  f.  Torry, 

41. 
IiiiL-rnatlonal  &  U.  N.  R.  Co.  v.  Tlsdalu, 

itW. 
liittrnatlonal  &  Gt.  N.  II.  Co.  v.  Under- 
wood, ;i7'.'. 
Inlernatloiial  &  G.  N.   R.  Co.  v.  Welsh, 

!ti.  374,  37«. 
IrL'l.-*on  f.  Southern  Pac.  Ry.  Co.,  :i74. 
IrlHh  V.  Mllwiiiikco,  etc.,  R.  Co.,  'Ml. 
Irl-»h  V.  Railroiid  Vo.,  3«0. 
Iron  Citv  Nat.    Bank  v.  Ft.    IMtt    Nut. 

Bank,  442. 
Iron  Ry.  ("o.  r.  Mowrey,  39,  380,  486,  5i3. 
Irvine  t".  Wood.  Uri. 
l.'-aac  f.  /uKHinltti,  4">7. 
Isaliell  V.  Uannibal,  etc,  R.  Co.,  503,  .IIS, 

blO. 
iKbell  V.  N.  Y.,  etc..  R.  Co.,  4G3. 
Israel  v.  Clarke,  3H-'. 
Ivay  V.  lledgeH,  7y. 
Ivens    V.    Cincinnati,  W.,  etc.,  Ry.  Co., 

4ti5. 
Ivcson  r.  Moore,  134. 
Ivoy  V.  Eaat  Tenn,  etc.,  Ry.  Co.,  602. 

J. 

Jacnnd  v.  French,  438. 

Juck.sun  1'.  liarllett,  4:54. 

Jacktion  c.  Burnhain,  425. 

Jackson  v.  Crllly,  474. 

Jackson   V.    Mctro|iolltan    Ry.    Co.,  28, 

.Wt,  41  0,  4S5,  4b7,  488. 
Jackson  r.  Arlington  Mills,  98. 
Jackson  v.  N.  C.  &  St.  L.  R.  Co.,  3('>. 
Jacoby  r.  Ockerhuusen,  127. 
Jacktion  t'.  rutsburgh,  etc  ,  Ry.  Co.,  545. 
Jackuou  V.   Sacramento   Valley  R.  Co., 

340. 
Juckeon  r.  Smithson,  285. 
Jackson  r.  St.  Louis,  etc.,  R.  Co.,  44,  111, 

122,  375. 
Jackson  v.  Second  Ave.  R.  Co.,  204. 
Jackson  f.  Schmidt,  141. 
Jacksonville  f.  Drew,  142,  145. 
Jacksonville  r.  Lambert,  589. 
Jacksonville,  etc.,  R.  (;o.  r.  Cox,  95. 
Ja<;k»onvllU',  etc.,  R.  Co.  v.  Hays,  93. 
Jacksonville,  T.  &  K.  W.  Ry.  Co.  v.  Gar- 
rison, 373. 
JiickBonvllle,  T.    &    K.   W.    Ry.  Co.    v. 

Peninsular  L.  T.  &  M.  Co.,  32,  90,  373, 

631,  690. 
Jacob  f.  Lncas,  2!>'i. 
Jacobs  V.  Dougherty,  453. 
Jacobs  f.  St.  Paul,  etc.,  R.  Co.,  381. 
Jacobs  f.  Tuit,  3<!7. 
Jacob.-<meyer  v.  Poggemoeller,  125. 
Jacobus    V.    St.    Paul,   etc.,  R.  Co.,  384, 

386. 
Jacqulth  V.  Richardson,  64. 
Jager  r.  Adams,  71. 
James  f.  Muchleback,  214. 
James  v.  Richmond  &  I).  R.  Co.,  512. 
Janin  v.  London  &  S.  F.  Bank,  442. 
Jansen  r.  Atchison,  309. 
Jailer.  Cardinal,  413,418. 
Jarrett  v.  Atlanta  &  W.  P.  R.  Co.,  379. 
Jarvls  f.  Brooklyn  Kl.  R.  Co.,  390. 
Jean  r.  Pennsylvania  Co.,  93. 
Jeffersonville,  etc.,  R.  Co.  v.  Beatty,  121. 


JclIcrHonvlllo,  etc,  IL  Co.  r.  Rowon.  514, 

JvlIerMonvlllo,  etc,  R.  Co.  v.  CluvvlaDU. 
340. 

JeJfcrsonvllle,  etc,  R.  Co.  r.  Goldnmlth. 
75, 

Jetlersonvlllu,  etc.,  R.  Co.  r.  ilcndrlcka' 
Admr.,54,373,  379. 

Jfllcrsonvillo,  M.  A  I    R.  Co.  r.  Pvtvrit. 
112,  113. 

Jellcrsonvillc,  etc,   R.  Co.  r.  Rosa.  119. 
l.'O. 

Jelfcry  r.  Bastard.  449. 

Jelfords  v.  Crumii,  418. 

Jelfrcyv.  Keokuk  Kv.  Co.,4K4. 

JellrleHv.  Wlillam.s,'(j«. 

Jcncksf.  Kenney,  8. 

Jenkins  r.  Bciham,  61. 

Jenkins  f.  Central  U.  it  B.  Co.,  474. 

.Jenkins  v.  CliicuKO  it  A.  IC.  Co.,  113. 

■Jenkins  t-.  Nut.  Bunk,  59. 

Jenkins  «•.  Wnldron,  450. 

Jenno  v.  Sutton,  2H6. 

Jewel  f.  Keonc,.'>.>9. 

Jcniiln>rs  v.  V.  I).  G.  Burton  Co.,  125. 

Jennlnga  f.  Grand  Trunk   Ry.  Co.,  338, 
349. 

Jennings  r.  Pennsylvania  R.  Co.,  Hi;. 

Jennings  v.  St.  Joseph  &  ."St.  L.  Ry.  Co., 
116. 

Jennings  t'.  St.  lyiuls,  etc.,  Ry.  (;o.,  51. 

Jennings  f.  Van  Schulck,  309, 47«. 

Je.ssen  v.  Swelgcrl,  71,3ii3. 

Jeter  f.  llaviland,  433,  43ii. 

Jett  V.  Shinn,  V>.i. 

Jcvon  f.  IUisli,254. 

Jewell  r.  Chicago,  etc.,  K.  Co., 379,  880. 

Jewutt  f.  G;ige,  124. 

Jewett  V.  Kansas  City,  etc.,  Ry.  Co.,  463. 

Job  V.  llanlun,  132. 

Job  V.  Job,  4r»6. 

Job.son  f.  Palmer, 259. 

Jochein  v.  Robinson,  139,  480. 
John  t'.  Bacon,  279. 

John  f.  Charlotte  C.  A  A.  IL  Co.,  390. 

John  Morris  Co.  r.  BurgeHs,  531. 
Johnson  r.  Alabama  A  V.  Ry.  Co.,  344. 
Johnson  r.  Chesapeake  A  «>.  R.  Co..  502. 

Johnson  r.  Chicago,  etc.,Ry.  Co., 38,  ll'.i, 

49;t,  50«i,  520. 
Johnson  r.  Cunningham,  434. 
Johnson  v.  Glens  Falls,  311. 
Johnson  r.  Gulf,  etc.,  Ry.  Co.,  WB. 
Johnson  r.  llolvokc,  5'.h). 
Johnson  r.  Ira8[>ureh,481. 
Johnson   r.  Lake  .>uperlor,  T.  A  T.  Ky. 

Co.,  469. 
Johnson  r.  I.«wl8,  105. 
Johnson  v.  Louisville  A  N.  R.  Co.,  603. 
Johnson  f.  .Midland  tty.  Co.,  342. 
Johnson  r.  Missouri  Puc  Ry.  Co.,  481. 
Johnson  r.  .Munro,  428. 
Johnson  f.  Newton,  2.%8. 
Johnson  v.  Now  York  Central,  etc,  B. 

Co.,3;>8. 
Johnson  r.  Northern  Pac.  R.  Co..  89.  597. 
Johnson  f.  Northwestern   Tel.  Kx.  Co., 

35,  38. 
Johnson  V.  Patterson,  80. 
Johnsuii  f.  Pliihidelphla.  323. 
Johnson  f.  ItnmberK.  2."^i. 
Johnson  i-.  KlchardHon,411. 
Johnson  v.  Mono,  4<i."i. 
Johnson   I'.    Weal  Cheater,  etc,  li.  Co., 
375, 4s7. 


C32 


TABLE    OF   CITATIONS. 


References  are  to  Pages. 


Johnson  v.  Willcox,  473. 

Johnston  v.  Cleveland,  etc.,  R.  Co.,  537, 

543. 
Johnston  V.  District  of   Colnmbia,  304, 

305. 
Johnstone  v.  Richmond  &  D.  R.  Co.,  345. 
Joint  8tocl£  Co.  v.  Brown,  .S29,  331. 
Jolitfe  V.  Wallasey  Local  Board,  294. 
Jones  V.  Angell,  423. 
Jones  V.  Andover,  64,  481. 
Jones  on  Bailments,  338,  415. 
Jones  V.  Bird,  269,  202,  445. 
Jones  V.  Boyce,  393, 479,  591. 
Jones  V.  Burtis,  423. 

Jones  V.  Chicago,  etc.,  Ry.  Co.,  380,  382. 
Jones  V.  Cincinnati  S.  &  M.  Ry.  Co.,  361. 
Jones  V.  Fay,  422. 
Jones  V.  Festiniog  Ry.  Co.,  83,  277. 
Joneav.  Frledenburg,  107. 
Jones  v.  Higgins,  257. 
Jones  V.  Housatonic  R.  Co.,  142. 
Jones  V.  Johnson,  328. 
Jones  V.  Louisville  &  N.  R.  Co.,  465. 
Jones  V.  Mayor,  etc.,  210. 
Jones  V.  Michigan  Cent.  R.  Co.,  87,  89. 
Jones  V.  Morgan,  59. 
Jones  V.  Morrison,  324. 
Jones  V.  McMlnimy,  224. 
Jones  V.  Nichols,  81. 
Jones  V.  Railroad  Co.,  367. 
Jones  V.  St.  Louis,  206. 
Jones  V.  Voorhees,  364. 
Jones  V.  Wagner,  9. 
•Jones  V.  AVood,  452. 
Jordan  v.  City  of  Asheville,  473. 
Jordan  v.  Cincinnati,  N.  O.  &  T.  P.  Ry. 

Co.,  538. 
Jordan  v.  Crump,  286. 
Jordan  V.  Hanson,  451. 
Jordan  v.  St.  Paul,  M.  &  M.  Ry.  Co.,  95. 
Joslin  V.  Grand  Rapids  Ice  Co.,  214. 
Joslin  V.  Grand  Rapids  Imp.  Co.,  210. 
Joslyn  V.  King,  59. 
Joy  V.  W.  Co.,  398. 
Joyce  V.  Martin,  102. 
Joyner  v.  Great  Barrington,  316. 
Judah  V.  McNamee,  422. 
Judd  V.  Town  of  Clareinont,  136. 
Judson  V.  Giant  Powder  Co.,  527,  531. 
Judson  V.  Love,  435. 
Julius  V.  Bishop  of  Oxford,  296. 
Jung  V.  City  of  Stevens  Point,  472. 


K. 

Kahl  V.  Love,  3, 12. 

Kalemback  v.  Michigan  Cent.  R.  Co.,  489. 

Kalis  V.  Shattuck,  106. 

Kane  v.  New  York,  etc.,  R.  Co..  489. 

Kankakee  &  S.  R.  Co.  v.  Horan.  96. 

Kannenberg  v.  City  of  Alpena,  300. 

Kanowskl   v.    Grand    Trunk  Ry.  Co.  of 

Canada,  504. 
Kansas  &  A.  V.  Ry.  Co.  v.  White,  378. 
Kant'as  Central  Ry.  Co.  v.  Fitzsimmons, 

78,  275,  465,  619. 
Kansas  City,  etc.,  R.  Co.  v.  Cook,  96. 
Kansas  City,   etc.,   R.  Co.  v.  Uaughtry, 

544.  r>r)0. 
Kansas  City,  etc.,  R.  Co.  v.  Dorough,  376. 
Kansas   City,   Ft.    Scott,  etc..  It.  Co.  v. 

Morrison,  364. 


Kansas  City,  etc.,  R.  Co.  v.  Kelley,  204, 

200. 
Kansas  City,  etc.,  R.  Co.  v.  Mayes,  483. 
Kansas  City,  etc.,  R.  Co.  v.  McHenry,  119. 
Kansas  City,  etc.,  R.  Co.  v.  Nicholls,  351. 
Kantas  City,  etc.,  R.  Co.  v.  Owen,  91. 
Kansas  City,  etc.,  R.  Co.  v.  Riley,  93. 
Kansas  City,  etc..  It.  Co.  r.  Simpson,  355. 
Kansas,  etc  ,  R.  Co.  v.  Kessler,  589. 
Kansas,  etc.,  R.  Co.  v.  Miller,  537,542. 
Kansas,  etc.,  R.  Co.  v.  Peavey,  465. 
Kansas,  etc.,  R.  Co.  v.  Phillibert.  471. 
Kansa'*,  etc.,  R.  Co.  i).  Pointer,  471. 
Kansas,  etc.,  R.  Co.  v.  Reynolds,  351,  353. 
Kansas,  etc.,  R.  Co.  v.  Salmon,  387,  541. 
Kansas,  etc.,  R.  Co.  v.  Whipple,  .^20. 
Kaples  V,  Orth,  531. 
Karle  v.  Kansas  Citv,  etc.,  R.  Co.,  55. 
Karr  v.  Parks,  485,  487,  599. 
Karsen  v.  Milwaukee,  etc.,  R.  Co.,  88. 
Katecle  v.  Philadelphia,  290. 
Kauffman  v.  Griesemer,  93. 
Kaveny  v.  Troy,  311,  312. 
Kay  V.  Kirk,  97. 
Kay  V.  Pennsylvania  R.  Co.,  2. 
Keane  v.  Waterford,  311. 
Kearney  v.  L.  B.  &  S.  C.  Ry.,  71, 143,  267, 

275,  622,  526,  529,  532. 
Keating  v.  Cincinnati,  302. 
Keating  v.  New  York  Cent.  R.  Co.,  375. 
Keble  V.  Thompson,  263. 
Keech  V.  Baltimore,  etc.,  Ry.  Co.,  119. 
Keefe  v.  Bo.*ton  &  A.  R  Co.,  394. 
Keefe  v.  Chicago,  465, 520,  521. 
Keeley  v.  E.  W.  R.  W.  Co..  398. 
Keenv.  O'Connor,  132,133. 
Keen  v.  Millwall  Dock  Co.,  238. 
Keenan  v.  Gutta  Percha  Mfg.  Co.,  127. 
Keenan  v.  Southworth.  450. 
Keffe  V.  Milwaukee,  etc.,  R.  Co.,  78,519. 
Keiffer  v.  Borough  of  Hummelstown,  35. 
Keightlinger  v.  Egan,  126, 128, 129. 
Keil  V.  City  of  St.  Paul,  3(i4. 
Keitel  v.  St.  Louis  C.  &  W.  Ry.  Co.,  471. 
Keliher  v.  Connecticut,  etc.R.  Co.,  119 
Keller  v.  Scott,  433. 
Kelley  v.  Central  R.  of  Iowa,  542,  543. 
Kelley  v.  Columbus, 316. 
Kelley  v.  Fond  du  Lac,  316. 
Kelley  v.  Silver  Spring  Co.,  493. 
Kelley  v.  Union  Ry.  &  T.  Co.,  465. 
Kellogg  V.  Chicago,  etc..  Railroad  Co., 

46,  89,  478,  500,  501. 
Kelloggv.  Gilbert,  436. 
Kellogg  V.  JanesviUt ,  306. 
Kellogg  V.  N.  Y.  Cent.  etc.  R.  Co.,  51,  571. 
Kellogg  V,  Norrls,434. 
Kellogg  V.  Payne,  219. 
Kelly  V.  Chicago  &  A.  R.  Co.,  499. 
Kelly  V.  Dunning,  94. 
Kelly  V.  Fond  du  Lac,  143. 
Kelly  V.  Hannibal,  etc.,  R.  Co.,  379, 484. 
Kelly  V.  Howell,  217,  223. 
Kelly  V.  Manayunk,  35. 
Kelly  V.  Pennsylvania  R.  Co.,  500. 
Kelly  V.  Shelby  R.  Co.,  207. 
Kelly  v.  Wright,  437. 
Kelsea  v.  Manchester,  137. 
Kelsey  t'.  Chicago,  etc.,  Ry.  Co.,  87. 
Kelsey  v.  Staten  Island  R.  T.  Co.,  500. 
Kelty  V.  Dunning,  94. 
Kf!lton  V.  Taylor,  60. 
Kommish  v.  Ball,  130. 
Kemp  V.  Bart,  438,  439. 


TAIJLK    or    CITATIONS. 


(333 


Ki'lVrciiccs  ur«  to  TaiJreK. 


Kendall  f.Albin.rWT.  601, 

Kondull  ti.  I(u.-4iun.  'JilH. 

Kuntlull  V.  KiMxIall.  iS'X 

Kontlnll  f.  1-.  &  S.  \V.  Ky.  Co.,  834. 

Kendall  f.  Sioktis,  44'.). 

Kennard  r.  Hurliin,  W,  ^■>.^,  618,  526. 

Konnurd  r.  Wlllinoro,  44'.t. 

Kennedy  i*.  ABhcrafl,  St^'i. 

Kenncy  f.  Ilannlhal,  etc.,  K.  Co.,  86. 

Ki-nncy  r.  New  York,  etc.,U.  Co., 38.5, 

Kennon  v   (illnier,  5'JO, 

Kenny  f.  UurnK,  108. 

Kenny  v.  Collier,  AW. 

Kent  f.  .Mid.  Uy.  Co.,362, 

Kent  r.  .'^luickard,  413. 

Kent  r.  Town  of  T.,lncoln,  321. 

Kentucky  Cent.  K.  Co.  f.  (iat(tlneau.2. 

Kentueky  Cent  U.  Co.  r.  McG;inty,  MS. 

Kentucky  Cent.  Ky.  (;o.  r.  .'^n)llh,'4<>5. 

Kentucky,  etc.,  R.  Co.  v.  Tnltmt,  .128. 

Kentucky  Cent.  Ky.  Co.  v.  Tliouias,  3^1, 

885,  4^1,  471. 
Kentucky  Cent.  Tl.  Co  v.  Wnlnvrrlght,53S. 
Kentucky  Hotel  I'o.  »•.  (;;imp,."r.>0. 
Kentucky  &  1.  15.  Co.  r.  Hall.  472. 
Kentucky  &  I   H   Co.  r.  (.»ulnkcrt.  401. 
Kentucky  &  I.  IJrldge  Co.  i-.  McKlnney, 

880. 
Kepler  V.  Jessiip,  427. 
Kepperly  v    KaniHdeii,  224,473. 
Kerliy  r.  Chadwell,  4:t(). 
Kerciincr  f.  Haker,  430. 
Kerr  V.  I'ennsvlvanlu  K.  Co.,  539. 
Kerr  r.  Wlllari.342. 
Kerwhacker  r.  Cleveland,  etc.,  K.  Co., 

461,  517. 
Ke.xlcrr.  Smith,  542. 
Kesslor  v.  Lock  wood,  125,  127. 
Ketchain  r.  Colin,  224. 
Ketvluiin  i».  Newman,  8 
Key  r.  Jluirhes  Kx'r8,262, 
Kevarr.  (  ovell,  W. 
Keyes  r.  iSank,  441. 
Ke'ves  r.  Minuea|)oIlB&  St.  L.  Uy.  Co., 

6'.t'.». 
Keya  r    Relfa>'t  Uy.  Co.,  862. 
Key.sr.  Vlllajrc  Marcellus,  31H. 
Kevscr  v.  Chle,ng(>,  etc.,  Ky.  Co.,  ll.'j,  520. 
KiMlnjf  r.  Clark,  451. 
KUev  r.  Kansas,  ]:i9. 
Klllien  r.  Hyde.  4S.'>. 
Klliiairick   v.  I'cunsylvanla  K.  Co.,  54, 

379. 
Kllver  V.  New  York,  etc.,  R.  Co.,  115. 
Klinlmll  r    Cu-'lmian,  216. 
KlmUall  V.  Kutlaud,  etc.,  B.  Co.,  345,  351, 

353. 
Kitnhall  V.  Pprrv,436. 
Kimberly  &  Clark  Co.  v.  Hewitt,  97. 
Klinhro  v.  Kdinonson,  450. 
Knictielof.  I'rlcBt.  59. 
Kliidal  V.  Blades,  449. 
Km^'f.  lliilfnlo,316. 
Kliijfr.  Chlcajto,  etc.,  U.  Co.,  116. 
Kiiijf  r.  Ford.  2s»i. 
Klngr.  Henkle,.'-)10. 

Klnjrr,  New  Vork,  etc.,  R.  Co.,  21.1,224. 
King  r.  Ohio  &  M.  Ky.  Co.,  27. 
King  V.  Pope,  4:i4. 
King  r,  Spurr,  213. 
Klngr.  Woodbndgc,  3.58. 
Kingston  &  15.  K.  Co.  r.  Campbell,  216. 
Kinney  r.  Central,  etc.,  K.  Co..  ;185,  3.Sf>. 
Kinney  v.  Hannibal,  etc.,  Ky.  Co.,  87, 88. 


Klninouth  r.  McDougnl    136,006. 

Kinney  c.   l-Klki-rtn,  tX)!. 

KiiiiH-y  f.  'I'ekainiili,  3118. 

Kinney  v.  Tr<i\,  311. 

Kinsley    r.    llutlalo,    etc..   It    Co..    839. 

.Si'a,  405,  410. 
Klrhy  f.   reiinsylvanln  U.  Co.,  248. 
Kirk  r.  Chlcjigo,  1  Ic,  Ky.  Co.,  340. 
Kirk  f.  Homer,  321. 
Kirst  r.  M.  I..  H.  &,  \V.  U.  Co.,6>9,  530. 
Kiston  r.  Hllderlirand,  411 
Kissler  v.  New  York  Cunt  ,  etc.,  K.  Co., 

8<>6. 
KIstner  v.  CItv  of  Indianaiiolis,  36. 
KIttredgo  r.  KllUilt,  127,  2-2. 
Klanbor  r.  American  KxproBS  Co.,  337, 

Klcever  f.  Market  St.  U,  Co.,  551. 

KIcnberg  r.  UiLssell,  124. 

KIcpsch  f.  Donald,  544,  651. 

Kllpper  V.  Coffey,  482. 

Kll.x  V.  Nieman,  76. 

Knapp  t'.  Stoux  City  A  1'.  Rv.  Co.,  32. 

Knight  r.  Ali)emarle  .V  K.  Co.,  '.C 

Knight  r.  Albert,  iW,  80. 

Knlfjht  1'.  Kox,  222,  2'24. 

K'llKht  r.  Pacific  Coa.st  Stage  Co.,  393. 

Knight  V.   New   York,  etc.,  It.  Co.,  118, 

:m. 

Knight  r.  Ponfcharlrain  R.  Co.,  375,  640. 
KnUht  f.  Portland,  etc.,  K.  Co.,73,  sm, 

3'.!.'). 

Knight  t'.  Watts,  25'^. 

Knights  f.  Qiiiirlefi,  4:58. 

Kni'ttr.  Kalelnh  an<i  ii.  N.  K.  Co.,  SCO. 

Knowle.s  i-.  ( 'laiiipioii,  </>. 

Knowles  r.  Muldi-n,  1  .'6. 

Knowlt.iuf   Milwaukee  City  R.  Co., 480. 

KnoxvilUi  Iron  Co.  t".  Ooboon,  215. 

Koch  V.  .Merk,  5'J2. 

Kocliter  r.  Ucclie^tor,  etc.,  R.  Co..  601. 

Kueniiig  v.  Covington,  538. 

Kohn  r.  I.ovetl,  7ti. 

Kolb  r.  Kliiges,  127. 

Kollock  r    City  o(  .Madison,  218. 

Kolstl  r.  MiniieiiiioliH,  etc.,  Rv.  Co.,  78. 

Kolzen  r.  Uroadway  &  a.  A.  R.  Co., 
20.'). 

Koons  V.  St.  T>ini«,  etc.,  U.  Co.,  519. 

Koonlz  t'.  (.)reK"n  Kv.  &  Nav.  Co.,  89. 

Kopper  r.  Willis,  418. 

Korrudy  v.  I^ku  Shore  A  M.  8.  R.  Co., 
5o-.>. 

Ki)rto  f.  C.  G.  LewlB  Coal  Co.,  810 

KrauH  V.  B.  C.  R.  *  N.  K.  Co.,  IIH. 

KrauBsr.  Wallkill  VhI.  K.  Co..  601. 

Krcauzigor  r.  Chicago  A  N.  W.  Ry.  Co., 
50. 

Krebs  v.  Minneapolis,  etc.,  R.  Co.,  110. 

Krcy  r.  Schlussner,  478. 

Krlppnerr.  IJIebel,  46,  .<i. 

Kronshago  f.  Railroad  Co., 341. 

Krucger  r.  Ferrant.  li»'>. 

Kroy  r.  Chicago,  etc  ,  It.  Co.,  491. 

Kuhn  f.  Jewell,  •2»I  4i;.  si. 

Kulwicki  f.  .Monroe,  219. 

Kuiniiiel  f.  <;erinan  Sav.  Hank,  14S. 

Kiiinler  f.  .luiicllon  R.  Co., 541. 

Kiinkel  f.  Chicigo,  321. 

hnrz  A  Huitenlocher  Ice  Go.  v.  Milwau- 
kee .t  N.  KiCo..86. 

Kxvioikowskl  f.  Chicago  A  O.  T.  By.  Co., 
5rr.'. 

Kyne  i'.  Wilmington  A  N.  R.  Co.,  517. 


634 


TABLE    or   CITATIONS. 


References  are  to  Pages, 


L. 


La  Dnke  v.  Tp.  of  Exeter,  32. 

La  Paul  V.  Truesdale,  114. 

La  Prelle  v.  Fordyce,39,  486. 

La  Sala  v.  Holbrook,  7,  8. 

Labold  V.  Southern  Hotel  Co.,  412. 

Lacket  v.  Latz,  77. 

Ladd  V.  Foster,  89. 

Laethem  v.  Ft.  Wayne  &  B,  I.  Ry.  Co., 489. 

Lafayette  v.  Weaver,  322. 

Laffilie  V.  New  Orleans  R.  Co.,  201. 

Laffrey  v  Grummond,  3H7. 

Laherty  v.  Hogan,  127. 

Lalcher  r.  New  Orleans,  etc.,  R.  Co., 502. 

Laidler  v.  Elliott,  427,  438,  439. 

Laing  V.  Colder,  346,  378. 

Laird  v.  Railroad,  88. 

Lake  V.  Milliken,  38, 142. 

Lake  Erie,  etc.,  R.  Co.  v.  Crnzen,  87. 

Lake  Erie,  etc.,  R.  Co.  v.  Fisiiback,  116. 

Lake  Erie,  etc.,  R.  Co.  v.  Griffin,  588. 

Lake  Erie,  etc.,  R.  Co.  v.  Kneadle,  122. 

Lake  Erie  &  W.  R.  Co.  v.  Mugg,  654. 

Lake  Shore,  etc.,  R.  Co.  r.  Bangs,  54, 379, 

484. 
Lake  Shore,  etc.,  R.  Co.  v.  Brown,  382. 
Lake  Shore,  etc.,  R.  Co.  v.  Johnson,  4i34. 
Lake  Shore,  etc.,  R.  Co.  v.  Mcintosh,  512. 
Lake  Shore,  etc.,  R.  Co.  v.  Miller,  502, 512. 
Lake  Shore,  etc.,  R.  Co.  v.  O'Conner,  4H4. 
Lake  Shore,  etc.,  R.  Co.  v.  Pinchln,  472. 
Lake  Superior  Iron  Co.  v.  Erickson,  216, 

223. 
Lakin  v.  Willamettee  Val.  &  C.  R.  Co.,372. 
Lalham  v.  Roach,  278. 
Lalor  V.  Railroad  Co.,  210. 
Lamb  t\  Camden,  etc.,  R.  Co.,  361. 
Lamb  v.  Palk,210. 
Lamb  v.  Walker,  602. 
Lambert  r.  Pembroke,  308,321. 
Lambeth  v.  North,  etc.,  R.  Co.,  379,  880. 
Laming  v.  Webb,  233. 
Lamport  V.  Laclede  Gas  Light  Co.,  13. 
Lamphirer.  Phipos.  421,  423,428. 
Lancaster  Ave.  I.  Co.  v.  Rlioad8,216. 
Lancaster  Bank  v.  Smith,  440. 
Lancaster  Canal  Co.  v.  Parnaby,  146,  281. 
Land  Credit  Co.  v.  Lord  Fermoy,  332. 
Landru  v.  Lund,  141,  317. 
Lane  v.  Atlantic  Works,  27, 38,  519. 
Lane  i;.  Cameron,  211. 
Lane  v.  Cotton,  225,  446. 
Lang  V.  Arcade  Hotel  Co.,  417. 
Lang  V.  Houston,  etc.,  R.  Co.,  539. 
Lang  V.  ^ew  York  R.  Co.,  204. 
Langv.  Pennsylvania  R.  Co.,  338. 
Lanpan  v.  City  of  Atchison,  305,  314,  489. 
Laugan  v.  St.  Louis,  eic,  R.  Co.,  396,  478. 
Langdon  v.  Godfrey,  439. 
I-angdonr.  Castleton,434. 
Langdon  v.  Humphrey,  422. 
Laugdon  v.  Potter,  433. 
Langfeldt  v.  McGraih,603. 
Langford  v.  Jones,  425. 
Langham  v.  Young,  229. 
Lanplier  v.  Forrester,  213. 
Langher  v.  Pointer,  220. 
Langhoff  v.  Milwaukee,  etc.,  R.  Co.,  600. 
Langolf  V.  Promer,  422. 
Langlois  v.  City  of  Cohoes,  143, 144. 
Langrldge  v.  Levy,  16,  17, 18. 
Langeton  v.  OUivant,  263. 


Langworthy  ?'.  Tp.  of  Green,  137. 
Lanier  v.  Youngblood,  415,  416. 
Lanlng  v.  Railroad  Co.,  494. 
Lannen  i:  Albany  Gas  Light  Co.,  27, 290. 
Lapeham  v.  Curtis,  92. 
Lapointe  v.  Middlesex  R.  Co.,  483. 
Lapsley  v.  Union  Pac.  R.  Co.,  508. 
Larkin  v.  Burlington,  etc.,  Ry.  Co.,  508. 
Larkin  v.  O'Neill,  280. 
Larmore  v.  Crown  Point  Iron  Co.,  74. 
Larrabee  v.  Peabody,  316. 
Larson  f.  Grand  Forks,  305. 
Larson  v.  Metropolitan  St.  Ry.  Co.,  8,210. 
Lary  v.  Cleveland  Ry.  Co.,  80. 
Lassiter  V.  Tel.  Co.,  594. 
Latch  V.  Rumner  Ry.  Co.,  526, 
Latham  v.  Roach,  72. 
Laughlin  v.  Philadelphia,  305. 
Laurel  County  Court  v.  Trnstees  of  Lau- 
rel County  Seminary,  Ky.,  262. 
Lauster  v.  Chicago,  etc.,  Ry.  Co.,  473. 
Laverenz  v.  Chicago,  etc.,  R.  Co.,  506. 
Laverone  v.  Margianti,  131,  282,  283. 
Lavery  v.  Manchester,  323. 
Lawless  v.  Troy,  311. 
Lawrence  v.  Combs,  109. 
Lawrence  v.  Green,  393,  486. 
Lawrence  v.  Housatonic  Ry.  Co., 491, 492. 
Lawrence  v.  Jenkins,  28, 109. 
Lawrence  v.  McGregor,  338. 
Lawrence  v.  Milwaukee,  etc.,  R.  Co.,  119, 

121. 
Lawrence  v.  Todd,  229. 
Lawson  V.  Chicago,  etc.  Ry.  Co.,  385. 
Lawson  on  Bailments,  59,  60,  338,  40i, 

411,  412. 
Lawson  on  Contracts,  12. 
Lawton  v.  Giles,  86. 
Lax  V.  Darlington  (Mayor  of),  482,  484, 

498. 
Lay  V.  Midland  Ry,Co.,  515. 
Leahy  v.  Davis,  545. 
Leak  V.  Georgia  Pac.  Ry.  Co.,  501. 
Leake  v.  Watson,  265. 
Learoyd  v.  Godfrey,  72,  73. 
Leather   Manufacturers'    Nat.   Bank  r. 

Morgan,  441. 
Leavenworth,  etc.,  R.  Co.  v.  Rice,  499. 
Leber  f.  Minneapolis,  etc.,  Ry.  Co..  222. 
LeConteur  v.  London,  Brighton  &  South 

Coast  Ry.  Co.,  335,  336. 
Lederman  v.  Pennsylvania  R.  Co.,  515. 
Ledyardt'.  Hibbard,  59. 
Leeds  v.  Amherst,  597. 
Lee  V.  Briggs,  .592. 
Lee  V.  Dixon,  438. 

Lee  V.  Minneapolis,  etc.,  Ry.  Co.,  116. 
Lee  V.  Riley,  10i>. 
Lee  V.  Southern  Pac.  R.  Co.,  494. 
Lee  V.  Troy  Citizens'  Gas  Light  Co.,  473. 
Leer.  Union  R.  Co.,  33. 
Lee  V.  Vacuum  Oil  Co  ,  37. 
Lee  V.  Van  Voorhis,  539. 
Lee  V.  Walker,  440.  ^ 

Leebrick  v.  Republican  Val.  &  S.  W.  B. 

Co.,  116. 
LeForest  v.  Tolman,  132, 555. 
Leggettr.  Gt.  N.  Ry.  Co.,  546. 
Lehigh  Iron  Co.  v.  Rupp,  530,553. 
Lehigh  Valley  R.  Co.  v.  Grelner,479. 
Lehigh  Valley  K.  Co.  v.  M<Keen,  47. 
Lehman  v.  Louisiana  W.  R.  Co.,  513. 
Lehn  V.  Brooklyn  City  R.  Co.,  42.  306. 
Leldlein  v.  Meyer,  93. 


TAULK    OF    CITATIONS. 


635 


Refereuops  are  to  TaKCH. 


IvOlKhton  f.  SarKcnt,  423,  *U. 

Lc'inku  V.  ClilcdKo,  uic,  U.  Co.,  340. 

I^iuinon  V.  CliHii.sliir,  374. 

Luiiiuine  f.  Cook,   l'J.%. 

Lemon  v.  ruUman  I'alacc  Car  Co.,  402, 

40"J 
Lenox  t'.  Harrison,  529. 
Lent  r.  Ilowiiid, '.'.VS. 
Leonard  r.  ClilaiKO  A  A.  lly.  Co.,  344. 
Leonard  v.  Columbia  Steam  Nav.   Co., 

ftM. 
Leonard  f.  Ma^lnnlR,  455. 
Leonard  v.  Storer,  li>4. 
I-ePcinluro  r.  S.  K.  Ky.  Co-.S-'iS. 
LeHllo  r.  City  of  Lewlston,  514. 
Lester  v.  IMttsford,  474. 
Luttis  r.  Horning, '.'SiJ. 
Levorinj?  i\  I'nlon  Trans.,  etc.,  Co.,  346. 
Levey  v.  Abbott,  43.'). 
Levick  v.  Norton,  M. 
Levy  f.  JJank  of  I'nlted  States,  442. 
Levy  r.  Hrown,  4:'>7. 
Levy  f.  Cnin|ibt'll,  374. 
Levy  r.  Dry  Dock,  etc.,  U.  Co.,  520. 
Levy  f.  Hale,  4.'')4. 
Levy  f.  LaiiKrldgc,  11,  3ti. 
Lewin  on  TKUST8,  etc.,  254,  257,  258,  259, 

264,  2».5. 
Lewis  r.  H.  &  O.  R.  Co.,  52. 
Lewis  i\  Dwinell,  423. 
Lewis  1-.  Flint,  etc.,  Uy.  Co.,  3fi. 
I^wls  r.  G.  W.  Uy.  Co.,  343,  344,  371. 
Lewis  r.  Hannibal,  etc.,  K.  (.'o.,52. 
Lewis  V.  London,  Chatham  &  Dover  Co., 

3fJ'J. 
Lewis  f.  Ludwlck,  338. 
Lewis  r.  Nobbs,  262,  264. 
I^wls  V.  Klversido  Water  Co.,  137. 
Lewis  f.  New  York  C.  S.  C.  Co.,  404. 
Leydfcker  r.  ISrlntnall,  107. 
Leyil.-n  v.  New  York,  etc.,  U.  Co..  116. 
Llerinan  v.  Chicago,  etc.,  R.  Co.,  552. 
Lllienttial  r.  Campbell,  449. 
Lilley  r.  Doublcday,  27. 
Lllley  f.  Fletcher,  483. 
LIm.i  P:iectric  L.  &  P.  Co.  r.  Deubler,.')39. 
LImpus  1-.  London  Omnibus  Co.,  2U4,  2i)5, 

20'.l. 
Lin  f.  Tcrre  Haute,  etc.,  R.  Co.,  36G. 
Llnck  r.  ."^chcffcl,  128,  129. 
Lincoln  Rapid  Traiinlt  Co.  r.  Nichols,  485. 
Lind.say  r.  Uridnewater  Gas  Co.,  USS. 
LlndiMiy  v.  City  of  Des  Moines,  322. 
LIndsey  v.  Leighton,  107. 
LIndsley  v.  Chicago,  etc.,  R.  Co.,  351. 
Linford  v.  Fltzroy,  445. 
I.lnford  V.  Lake,5s7. 
Linnehan  r.  Sain]>Bon,  485,  487. 
Llnnlng  v.  IlllnoLs  C.  R.  Co.,  45, 
LIsHa  I'.  Goodkind,  488. 
Littaurt'.  Narraganxett  Pier  Co.,  499. 
Little  r.  HoMlon,  etc.,  R.  Co.,  346. 
Little  V.  City  of  Madison.  i:«. 
Llttlo  V.  Hackelt,  6o8,  509,  510. 
Littler.  Mc.Vdaras,  107. 
Little  f.  Superior  R.  T.  Uy.  Co.,  466. 
Littler.  Wlrth,  108. 

Little  Rock,  etc.,  R.  Co.  r.  Atkins,  379. 470. 
Little  Rock,  etc.,  R.  Co.  r.  Barker,  .142,  ^Vi. 
Little  Rock,  etc.,  R.  Co.  r.  Chapman,  93, 

95. 
Little  R.,  etc.,  H.  Co.  r.  Finley,  111. 
Little  Rock,  etc.,  R.  Co.  v.  Harrell,  609. 
Little  Rock,  etc.,  R.  Co.  r.  Uaynes,  24. 


Llttlo  U.i.k.  etc.,  R.  Co.  r.  Henson.  121. 

.'i2.*i. 
Little  Rork,  etc..  R.  Co.  v.  Holland,  B8M. 
Little  Rock,  etc.,  R.  Co.  r.  Miles,  3h«. 
Little  Uork  A  M.  R.  Co.  r.  MoMcbv.  VXX. 
LlttU- Rock,  etc.,  iC.to.  r.  Parkhurtit,!.a3. 
Little  ICock.ete.,  U.  (  o.  r.  Payne,  12-J,  12  t. 
Llttlo  Rock,  etc.,  K.  Co.  r.  Talbot,  344, 

Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Tankcr»ly, 

379. 
Llvermoror.  Freeholders  of  Camden,  KU. 
Liverpool  Corn 'Irado  Assoc,  r.  lx>ndon 

A:  N.  \V.  Ry.,33'J. 
LivlngHton  r.  Cox,  4:13. 
Llvlll^.'^ton  r.  McDonald,  93. 
Llvliig!4ton  V.  Moln^oim  (,'oalC«.,9. 
Livingston  r.  Radchll,  ^:tt. 
LIvezey  r  Phllailelphia,  144. 
Lloyd  r.  Fr'-shlleld.  444. 
Llovd  r.  Hannibal,  etc.,  U.  Co..  879. 
Lloyd  V.  Dglebv,  526. 
Lloyd  r.  St.  I.ouih,  etc.,  Ry.  Co.,  502. 
LoaKue  c.  Mcmplils  A  C.   K.  Co.,  540. 
iMck  Co.  r.  lUillroad  Co.,  3<)0. 
Locke  r.  First  DIv.,  etc.,  R.  Co.,  4f.2. 
Locke  r.  S.  C   &  P.  R.  Co., 246. 
Lockhartr.  Llchteuthaler,  6«7.  Smt. 
Ix)ckwood  r.  N.  Y.,  etc.,  R.  Co.,  553. 
Locser  r.  Hiiinphrey,  89,  2M3. 
Lolllln  r.  i;iilfalo&S.  W,  R.  Co.,  883. 
Lofton  r.  Vogler,  548. 
Loftus  r.  Town  of  North  Adams, BOS. 
Loftus  r.  U.  F.  Co.,  398. 
Ixjgansport  r.  Dick,  2'.*2. 
I>oinbar  v.  Kast  Tawas,  321. 
Lond  r.  Winchester,  264. 
London,  Adm'x  r.  Chicago,  etc,  R.  Co., 

3>4. 
London  Trust  Co.  r.  .McKonzlc,325. 
Long  r.  Central  Iowa  ICy.Co.,  113,  114. 
Long  V.  MorriHon,  546. 
Long  r.  Oris,  438. 
Long  V.  Penn^<vlvania  R.  Co.,  336. 
Lon^r.  Tp.  of  .Milford,  466. 
Longabaugh  i-.  \  irgmla  City  R.  Co.,  nl. 
I^ongiiieid  V.  Hollldav,  11,  18. 
Loiiginore  v.  G.  W.  Ry.  Co.,  3110. 
Loomls  r.  Terry,  \iS,  131. 
Looney  v.  Jolie't,  320. 
Looney  v.  McLean,  107,  479. 
Loop  V.  Lltchlleld,  12. 
Lopez  r.  ('entral  Ariz.  Mln.  Co.,  470. 
Lord  V.  Mid.  Rv.  Co.,:iV;. 
Lortz  V.  New  York,  etc.,  R.  Co.,  506. 
Ixiseo  r.  Huclianan,  '.*2. 
I^jseo  r.  Clute.  12,  2SS. 
Loudy  V.  Clarke,  591. 
Louisville  Itank  r.  Vlcksburg  Rank,  4491 
Louisville,  etc.,  R.  Co.  r.  Allen,  4'.'2. 
l>olll^^vllle,  etc.,  R.  Co.  r.  Heim,  :>«. 
Louisville,  etc.,  R.  Co.  r.  Mlgger,  :151. 
Louisville  etc.,  IC.Co.  v.  IMnion.SWi. 
Louisville  etc.,  R.  r.  Ulack,  :*r:. 
Ixjulsvlllo,  etc.,   R.  Co.  r.  Itonhayo.  G. 
Ix)Ul»vllle,etr.,  H    Co.  r.  Hrice,  .Ml. 
Fx)ul.'4Vllle,  etc.,  R.  Co.  r.  Hrown,  I.M. 
Ix)iilsvillc,  etc.,  R.  Co.  r.  linck,  481. 
L«jul8vUle,  etc.,  IL  Co.  v.  Cmc's  Admr.. 

508. 
Ix)ul«vllle,  etc.,  R.  Co.  v.  Chaflln,  M7. 
I^ouiBVllle,  etc  .  R.  Co.  r.  Clarke.  .VM. 
Louisville,  etc.,  R.  Co.  r.  Conlfl.  4i-«.  .'At, 
Louisville,  etc.,  R.  Co.  v.  C.auk,  5» 


636 


TABLE    OF   CITATIONS. 


Keferences  are  to  Pages. 


Lonisville, 
Louisville, 
Louisville 
Louisville, 
Louisville, 
Louisville 

4B6. 
Louisville, 
Louisville. 

482,598.  ■ 
Louisville, 
Lonisville, 
Louisville, 
Louisville, 

537. 
Louisville, 
Louisville, 
Louisville- 
Louisville 
Louisville, 
Lonisville, 
Louisville. 
Lonisville, 
Louisville. 

510. 
Lonisville 
Louisville 
Louisville, 

464 
Louisville 
Louisville 
Louisville 
Lonisville 
Louisville 
Louisville 
Louisville, 

367. 
Louisville 

Admrx., 
Lonisville, 

5S8. 
Louisville, 
Louisville, 
Louisville, 
Louisville, 
Louisville, 
Louisville, 
Louisville 
Louisville, 
Louisville, 
Louisville, 
Louisville, 

90. 
Louisville, 
Louisville, 
Louisville, 
Ixjuisville, 
Louisville, 
Louisville 
Louisville, 
Louisville 
Louisville. 
Louisville 
Louisville, 
LoulMvllle, 
Louisville, 
Louisville, 
Louisville, 
Louisville, 
Ix)nl.sville, 
lyoulsville 
Louisville! 
I.<oul8Ville; 
Louisville 


,  etc.,  E.  Co.  V.  Coppape,  538. 
,  etc.,  R.  Co.  V.  Crunk.  379. 
,  etc.,  R.  Co.  V.  Dies,  345,  353. 
,  etc.,  R.  Co.  V.  Douglass,  202. 
,  etc.,  li.  Co.  V.  Dulaney,  465. 
,  etc.,   R.  Co.  V.  Fleming,  43, 

,  etc.,  R.  Co.  V.  Francis,  113. 
,  etc.,  R.   Co.  V.  Frawley,  481, 

,  etc.,  R.  Co.  V.  French,  596. 

etc.,  R.  Co.  V.  Goetz,  474,  498. 
,  etc.,  R.  Co.  V.  Goodbar,  295. 

etc.,  R.  Co.  V.  Goody-Koontz, 

,  etc.,  R.  Co.  V.  Gower,  5. 
etc.,  R.  Co.  V.  Grant,  344. 
,  etc.R.  Co.  V.  Hays,  93,  9.5. 
,  etc.,  R.  Co.  V.  Hallawell,  399. 
,  etc.,  R.  Co.  v.  Hart, 89. 112,118. 
etc.,  R.  Co.  V.  Head,  472. 
,  etc.,  R.  Co.  V.  Hedger,  351. 
,  etc.,  R.  Co.  V.  Holsapple,  380. 
,  etc.,  R.  Co.  V.  Howard,  465, 

&  X.  R.  Co.  V.  Hurt,  461. 

&  N.  R.  Co.  V.  Jerson,  458. 

,  etc.,  R.  Co.  V.  Johnson,  379, 

,  etc.,  R.  Ca  v.  Jones,  44. 

etc.,  R.  Co.  V.  Kelly,  378. 

&  N.  R.  Co.  V.  Kelsey,  35,  353. 
,  etc.,  R.  Co.,  Krey,  501. 

etc.,  R.  Co.  V.  Lobges,  537. 

etc.,  R.  Co.  V.  Lucas,  394. 

etc.,  R.  Co.  V.  Mahan,  340, 366. 

,    etc.,    E.   Co.   V.   Mahony's 

546. 

,  etc.,  R.  Co.  V.  Merriwether, 

etc.,  R.  Co.  V.  Meyer,  346. 
etc.,  R.  Co.  V.  Miller,  374. 
,  etc.,  R.  Co.  V.  Natchez,  86. 
,etc.,  R.  Co.  t).  Xorthlngton,43. 
,etc.,  R.  Co.  V.  Oden,  344. 
,  etc.,  R.  Co.  V.  Orr,  543.  552. 
&  N.  R.  Co.  V.  Owens,  352. 
,  etc.,  R.  Co.  V.  Rains,  488. 
,  etc.,  R.  Co.  V.  Reese,  88. 
,  etc.,  R.  Co.  V.  Rice,  463. 
,  etc.,  R.  Co.  V.  Richardson,  86. 

,  etc.,  R.  Co.  V.  Sanford,  473. 
,  etc.,  R.  Co.  V.  Sanders,  555. 
,  etc.,  R.  Co.  V.  Schinetzer,  479. 
,  etc.,  R.  Co.  V.  Scott,  113. 
,  etc.,  R.  Co.  V.  Shanks,  589. 
&  N.  R.  Co.  V.  Shelton,  119, 
,etc.,  R.  Co.  V.  Sherrod,  345. 
,etc  ,R.  Co.  tJ.  Slckings,53,378. 
,  etc.,  R.  ('o.  V.  Snider,  44,  374. 
,  etc.,  R.  Co.  V.  Sparks,  603. 
,  etc  ,R.  Co.  V.  Sianger,  32. 
,  etc.,  R.  Co.  V.  Stommel,  499. 
,  etc.,  R.  Co.  V.  Taylor,  385. 
,etc.,  R.  Co.  V.  Tonart,  338. 
,  etc.,  R.  Co.  V.  Trammel,  537. 
,  etc.,  R.  Co.  V.  Whltesell,  120. 
,  {'tc.,R.  Co.  V.  M'Idinan,  354. 
,  etc..  R.  Co.  V.  Wll-on,  .339. 
,  etc.,  R.  Co.  V.  Wolfe,  394. 
,  etc.,  Ry.  Co.  v.  Wood.  27. 
,  etc.,  R.  Co.  V.  Wynn,  352. 


Lonisville  Safety- Vault  &  Trust  Co.  v. 

Louisville  &  N.  R.  Co.,  538. 
Lovegrove  v.  White,  435. 
Lovejoy  V.  Dolan,  65. 
Lovell  V.  De  Bardelaben  Coal  &  I.  Co., 

541. 
Lovell  V.  D.  C.  &  D.  R.  Co.,  363. 
Lovett  V.  Thomas,  2.i5. 
Low  V.  Grand  Trunk  Ry.  Co.,  73, 490. 
Lowe  V.  Chicago,  etc.,  Ry.  Co.,  545. 
Lower  v.  Franks,  426,  493. 
Lowery  v.  Manhattan  R.  Co.,  32, 39. 
Lowrey  v.  Brooklyn,  etc.,  R.  Co.,  139. 
Lowery  v.  W.  U.  Tel.  Co.,  26. 
Lucas  V.  Mason,  206. 
Lucas  V.  Mich.  Cent.  R.  Co.,  2M. 
Lucas  V.  Trumbull,  211. 
Luceyr.  Hannibal  OH  Co.,  491. 
Luck  V.  Zapp,  455. 
Lucy  i\  Ingram,  213. 
Ludellng  v.  Stubbs,  93. 
Ludlow  V.  Fargo,  318. 
Lufkin  V.  Zane,  105. 
Lukin  V.  Godsall,  603. 
Lumley  v.  Caswell,  494. 
Lumley  v.  Gye,  36. 
Lumsden  v.  Ru.'sselLSlS. 
Lund  V.  Tyngsboro,  485. 
Lunn  V.  L.  &  N.  W.  Ry.  Co.,  200. 
Lush  J.  Lox  V.  Darlington,  (Mayor  of), 

276. 
Lush  J.  Owen  v.  Gt.  W.  Ry.  Co.,  400. 
Lnsk  V.  Relate,  412. 
Lustlg  V.  New  York,  etc.,  R.  Co.  539. 
Lutcher  &  Jloore  Lbr.  Co.  v.  Dyson, 601. 
Luther  v.  Worcester,  312. 
Lyman  I'.  Hampshire  Co.,  146. 
Lydecker  v.  Valentine,  592. 
Lynch  v.  Brooklyn  City  R.  Co.,  50. 
Lynch  v.  Buffalo,  319. 
Lynch  v.  Commonwealth,  428, 436. 
Lvnch  V.  Erie,  315. 
Lynch  v.  McXallv,  129. 
Lynch  v.  New  York,  94,302,314. 
Lvnch  V.  Northern  P.  R.  Co.,  35. 
Lynch  v.  Nurdln,  31,  283,  286,  515,  516,  518, 

520. 
Lynch  v.  Sellers.  592. 
Lynch  v.  Smith,  514. 
Lyndsay  v.  Conn.,  etc.,  R.  Co.,  528. 
Lyon  V.  City  of  Logansport,  29,  311. 
Lyon  V.  Desotelle.  481. 
Lyon  V.  Horner,  453. 
Lyons  V.  Martin,  209. 
Lvons  V.  Rosenthal,  529,  531. 
Lyons  v.  Terre  Haute,  etc.,  R.  Co.,472. 
Lyttle  V.  Chicago  &  W.  M.  Ry.  Co.,  495. 

M. 

McAdoo  V.  Richmond  &  D.  R.  Co.,  24. 

McAllister  V.  Clement,  452. 

McAlpln  V.  Powell,  74  105. 

McAlory  v.  Louisville  &  N.  R.  Co., 543. 

McAndrews  V.  Collert*d,  294. 

McArthur  v.  City  of  Saginaw,  143- 

McAunich  v.  Mississippi,   etc.,  R-  Co., 

246,  376. 
McHaIn  V.  Smith,  548. 
McCabe  v.  Old  Dominion  S.  S.  Co.,  491. 
McCafferty  l\  The  liallroad,  292.    ^  _  _ 
McCaffrey  v.  President,  etc.,  Del.  &  H.  U. 

Co.,  508. 


TABLE    OF    CITATIONS. 


G37 


Referencos  are  to  I'a^eg. 


McPfthill  r.  Detroit  City  Uv.,.^52. 
McCiill  c.  Chamberlain,  Uli,  111,  ll'J. 
Mct.'Hlliim  V   IvOiiK  IhlaiKl  IL  Co..  fi09. 
McCandless  r.  McWlia,  4J;i,  (.li.lje. 
McCanco  r.  LoiuIdii,  etc.,  U.  Co.,  XiH, 
Mct'ann  r.  KiiiKX  Co.  Kl.  li.  Co.,'Jl.'>. 
McCniinr.  I-.  &  N.U'.  Uy.  Co..  ;U3,!M7.349. 
McCiiiin  r.  Sixth  Av.  K    (^o  ,  4H6. 
.XlrCanihiT  f.  Commonwealth,  1°2,408. 
M<'<  'arthy  v.  Cass  Avenue  &  V.  O.  U.  Co., 

McCarthy  v.  Chicago,  etc.,  R.  Co.,  555. 
M<'t;arthy   f.    New  York,  etc.,  Buvings 

Hank.  108. 
McCarthy  '"•  Portland  Second  Pariab.SlS. 
M'Carthy  v.  Young,  457. 
Mrtartv  v.  Gulf,  etc  ,  Ilv.  Co.,  848, 
MfCarty  r.  Now  York,  etc.,  R.  Co.,  340. 
McCaskill  i-.  Klllott,  125,  l.'f.,  2S3. 
McCaslin  r.  Lake  Shore  &  M.  S.  Ry.  Co., 

MrX'auley  v.  Tennessee  C,  I.  &  R.  Co.. 

5'.'. 
McCawleyr.  Furness  Ry.  Co.,;}42. 
McClain  v.  Brooklyn  City  K.  Co.,  485. 
McClaren  v.  Ind.,  etc..  K.  Co.,  61. 
McClary  v.  Sioux,  etc.,  City  R.  Co.,  36, 47, 

■XiS. 
McClcllan  v.  Hurdle,!)?. 
McClelland  r.  r><)ul8Vllle,  etc.,  It.  Co.,  36. 
MeClung  r.  Dearborne,  20". 
McClure  v.  City  of  Red  Winsr,  94. 
McClure  r.  CItv  of  Sparta.  :>,S. 
McConncll  v.  Norfolk  &  W.  R.  Co.,  860. 
Mc(;onnell  r.  Osage,  322. 
McCorkle  r.  Chicago,  etc.,  R.  Co.,  384. 
MrCorinick  v.  City  of  AniHterdam,  29.'). 
Mc(;ormlck  v.  Hudson  River  R.  R.  Co., 

3t>4. 
McCormlck  v.  Kansas  City,  etc.,  R.  Co., 

McCormlck  t-.  Tp.  of  ^Va8hlDgton,  146. 
Mc(;owley  v.  The  Furness  Ry.  Co.,  386. 
Mc(^oy  V.  California  Pac.  R.  Co.,  119,  1'22, 

628, 
McOoyi'.  McKowen,  206. 
McCoy  f.  Railroad  Co.,  .3.V2. 
Mc(;oyf.  Southern  Pac.  Co.,  111. 
McCrackerr.  .Markesan,  314. 
McCrory  r    Chicago,   etc.,  Ry.  Co.,  505. 
Mcf.'uer.  Kno.vvtllc,  315. 
McCullough  I'.  Shoneman,  71. 
McCutchen  r.  Homer,  137. 
McDnncId  v.  Loiri,  309. 
McDanlels  r.  Uol.lnHon,  412. 
McDerinoitt'.  Third  Av.  R.  Co.,  473. 
McDonaM  v.  Ashland,  308,  318. 
McDonald  r.  Chicago,  etc.,  R.  Co.,  393, 

.ru,r,03 
McDonald  r.  Kaglc,  etc.,  Mnfg.  Co.,  541. 
McDonald  r.  Highland  Ry.  <  o.,  334. 
McDonald  v.  International  &  G.  N.  Ry. 

Co.,  -IW 
•McDonald  v.  Jodrev,  125. 
.McDonald  v.  Mass'  Genl.  HoRDltal,  208. 
.McDonald  r.  PUtslleld,  etc.,  R.  Co.,  111. 
McDonald  v.  Union  Pac.  Ky.  Co.,  76. 
McDonnell  r.  Philadelphia,  31 1,  313. 
McDonnell  r.  PIttsfleld,  etc.,  Uv.  Co.,  119. 
McDonnell  on  Masteu  anusekvant, 

McDougall  i\  Central,  etc.,  R.  Co.,  470. 
McDowell  V.  Che.xapeake,  etc.,  R.  Co.,494. 
McElrealh  v.  Middlcton,438. 


.McKlrov  r.  t;ol)le,97. 

.McFadden  v.  Missouri  I'no.  Ry.  Co..  344. 

McFecr  v.  T.eHow,  451 

Mctiaren  v.  Atlantic  A  W.  R.  Co.,  51. 

McGarryj-.  l..ooiniH,  620. 

Mc(;arry  i-.  New  York  A  H.  R.  Co.,  127. 

McCiitlln  V.  Palmer's  Co.,  22".i. 

Mi-(;inty  f.  Keokuk,  315.  479,  486 

Mc<;oldrlck   v.  New    York,  etc.,  R.  Co.. 

47'.». 
Mciiown  r.  International  A  G.  N.  U.  Co.. 

543. 
M>(;rail  r.  Kalama/.oo,  318.  ;!21. 
Mc(;ratli  f.   Detroit,  etc  ,  R.  Co.,  113. 
Mctjrulh  f.  Now  York  Central,  etc,  R. 

Co.,  372,  .VM 
Mciiralh  t'.  \  illago  of  Bloomer,  24. 
MctJrath  r.  Walker,  lii5. 
Mc(;raw  f.  B.  A  g   IL  Co.,  337. 
Mctirew  f.  Cato,  548. 
Mciiucken  v.  Western  N.  Y^.  A  P.  R.  Co., 

38-2. 
McGuerty  r.  Hale,  50. 
McGulness  r.  Butler,  619. 
Mctiulnnis  v.  Worcester,  31.V 
MctJuIro  v.  Chlcjigo,  etc..  Rv.  Co.,  620. 
McGulre  v.  (Jrant,  6,7,  10,  214,  603. 
McGulrcf.  Rmgroee,  'i-fl. 
iMcGuIre  r.  Spence,  82,620. 
Mclntlre  t>.  Roberts,  37. 
Mclniyre  r.  New  York,  etc.  R.  Co.,  544. 
McKelgue  r.  City  of  Janesvllle,  315,  3'20, 

429. 
McKeller  v.  Tp.  of  Monitor,  32,  144,461. 
McKeiina  r.  Baessler,  85. 
McKenzlc  r.  Cheetham,  107. 
McKenzle  f.  City  of  .Northllehl,  314. 
McKeon  i\  (Gutter,  107. 
McKinney   v.   Chicago  A  N.  W.  Ry.  Co. 

502. 
McKinney  v,  Noll,  527. 
McKiiight  r.  1.  A  M.  R.  Const.,  246. 
McKone  r.  Michigan  Cent.  R.  <;o.,  397. 
aicLaren  f.  Atlanta  A  W.  P.  li.  Co..  379. 
McLaughlin  v.  Arinfleld,  489. 
Mcl^aughlm  v.  Bangor,  690. 
McLaughlin  r.  Corry,  595. 
McLaughlin  v    Prior.  213,  220. 
McLean  f.  Burnham,  74. 
.M.l.can  I-.  Kicke  W.  A  W.  Co.,   107. 
McMahon  c.  Davidson,  38.  623. 
McMahon  f.  Field,  •iH. 
McMahon  r.  Northern,  etc.,  R.  Co.,  514. 
McManus  i-.  Crickctt,  205. 
McManus  v.  L.  vt  Y.  Ry.  Co.,  343,  849. 
McMurttn  r.  Hanav,  78. 
McMillan  r.  Staples,  7. 
McMillen  r.  Walt.  8. 
McMurtry  f.  Louisville.  oU;.,  Ry.  Co..3i5. 
McNally  f.  Cohocs,  317. 
McNamara  t'.  N'lllagu  of  ClinlonvlUc,  44. 

193. 
McNcar  v.  Wabash  Ry.  Co.,  112. 
.McNult  V.  Livingston,  453. 
McPadden    t'.  Now    York,   etc.,  R.  Co., 

374.  375. 
Mcl'ariland  f.  Thom.t,  106. 
McPherson  r.  District  of  Columbia.  319. 
McQueen  f.  «;reat  WchL  Rv.  Co..  Mi. 
Mcgnllken  f.  Central  Pac.  R.  Co..  470. 
McKlckard  f.  Flint,  55. 
.Mc"^herry  r.  Canandalgua.  306.  S21. 
McbloopV.  Ulcbmond  A  1>.  IC  Co..  54. 


(338 


TABLE    OF    CITATIONS. 


References  are  to  Pages. 


McTee  v.  Vicksbnrg,  etc.,  R.  Co.,  589. 
McWilllams  v.  Hopkins,  431. 
Wacaulay  v.  Fnrness  liy.  Co.,  371. 
Macbeaih  v.  Ellis,  434. 

AlACDONXELL  ON  MASTER  AND  SER- 
VANT, 213. 

Macey  v.  Ilodson,  238. 

aiachn  V.  London  &  S.  W.  Ry.  Co.,  341. 

Mackay  v.  W.  U.  Tel.  Co.,  593. 

Mackenzie  v.  McLeod,  203. 

Mackey  v.  Adair,  437. 

Mackey  v.  City  of  Vlcksbarg,  515. 

Mackin  v.  New  Jersey  Steamboat  Co., 
349. 

Mackoy  V.  Missouri  Pac.  Ry.  Co.,  602. 

MacJennan  v.  Long  Island  K.  Co.,  485. 

Macon,  etc.,R.  Co.  v.  Davis,  463. 

Macon,  etc.,  R.  Co.  v.  Mayes,  372. 

Macon,  etc.,  R.  Co.  v.  VVinn,  598. 

Macrew  v.  G.  W.  Ry.  Co.,  361,  362. 

Maddox  v.  Brown,  200. 

Maddox  V.  L.  C.  &  D.  Ry.  Co.,  400. 

Madison,  etc.,  R.  Co.  v.  Bacon,  541. 

Magee  v.  Troy,  321. 

Magee  v.  Pacific  Imp.  Co.,  417. 

Maginnls  V.  City  of  Brooklyn,  76,  77. 

Magner  r.  Truesdale,  499. 

Maguin  v.  Diusmore,  386. 

Magulrer.  City  of  Cartesville,  98. 

Magulre  v.  Middlesex  R.  Co.,  377. 

Maher  v.  Boston  &  A.  R.  Co.,  551. 

Mahler  v.  Norwich,  etc.,  Transp.  Co.,  555. 

Mahon  V.  Burns,  215. 

jMahoney  t-.  Atlantic,  etc.,  R.  Co.,  372. 

IMahoneyr.  County  of  Middlesex,  433 

Maignan  v.  New  Orleans,  etc.,  R.  Co.,  340. 

Mairs  v.  Manhattan  Real  Estate  Asso- 
ciation, 95. 

Mallach  v.  liidley,  208. 

Maltory  v.  Ferguson,  453. 

Mallory  v.  Griffey,  474. 

Malone  v.  Boston,  etc.,  R.  Co.,  365. 

Malone  v.  Knowlton,  125. 

Malone  v.  Pittsburgh  &  L.  E.  R.  Co.,  489. 

Malouey  V.  Bacon,  414. 

Maloy  V.  St.  Paul,  315. 

Maloy  V.  Wabash,  etc.,  Ry.  Co.,  503. 

Maltbie  v.  Bolting,  215,  224. 

Maltby  V.  Chapman,  416. 

Mardia  v.  Shackleford,  433. 

May  V.  Burdett,  285. 

Mandevilie  v.  Reynolds,  437. 

Mangan  r.  Atterton,  31, 517. 

Mangan  v.  Foley,  216. 

Manger  «.  Shii)man,  125. 

Manley  v.  Boston  &  M.  R.  Co.,  51. 

Manley  v.  Wilmington,  etc..  It.  R.  Co.,  51, 
461. 

Mann  v.  Boudoir  Car  Co.,  409. 

Mann  v.  Central,  etc.,  R.  Co.,  506. 

Mann  v.  Oriental  I*.  W.,  210. 

Mann  v.  Taylor,  591. 

Mann  v.  Trabue,548. 

Mann  v.  Weiand,  127,  .507. 

Manncrman  v.  Seimerts,  71. 

Manning  f.  Wells, 412. 

Manning  v.  Wilkin,  439. 

Manser  r.  East  Co.  R.v.,395. 

Mansfield  Coal  &  Coke  Co.  v.  McEnery, 
551. 

Mantel  v.  Chicago,  etc.,  Ry.  Co.,  479. 

Manufacturing  iJo.  v.  Morrissey,  494. 

Manzonl  r.  Douglas,  526. 

Marlde  v.  Roes,  125,  128,  465. 


March  v.  Walker,  542. 

Mardls  V.  Shackleford,  432,  4.33. 

Martel  r.  South  Wales  Ry.  Co.,  110, 121. 

Marietta,  etc.,  R.  Co.  v.  Stephenson,  110, 

111. 
Marine  Ins.  Co.  v.  St.  Lonls,  etc.,  Ry, 

Co.,  338. 
Marlon  v.  Chicago,  etc.,  R.  Co.,  204. 
Marlon  Safe  Co.  v.  Warde,  13. 
Marlon  St.  R.  Co.  v.  Shaffer,  52,  377. 
Mark  v.  St.  Paul,  etc.,  R.  Co.,  486. 
Market  v.  St.  Louis,  306. 
Markham  v.  Houston  D.  N.  Co.,  509. 
Markle  v.  Borough  of  Berwick,  304. 
Markley  v.  Amos,  438. 
Marks  v.  Petersburg  R.  Co.,  502. 
Mars  V.  Delaware  &  H.  C.  Co.,  37. 
Marsel  v.  Bowman,  125. 
Marsh  v.  Chlckering,  496. 
Marsh  v.  Hand,  214. 
Marsh  V.  Jones,  126,  282. 
Marsh  v.  Whitman,  428. 
Marshall  v.  Cohen,  105. 
Marshall  v.  Farmers  &  M.  S.  Bank,  324. 
Marshall  v,  Welwood,  92,  275. 
Marshall  v.  Y.  &  N.  Ry.  Co.,  368,  370,  37L 
Marsland  v.  Murray,  514. 
Martin  v.  Baltimore,  etc.,  R.  Co.,  384. 
Martin  v.  Bell,  452. 
Martin  v.  Bishop,  91. 
Martin  v.  Cahill,  513. 
Martin  v.  Capital  Ins.  Co.,  437. 
Martin  v.  Gleason,  96. 
Martin  v.  Gloster,  481. 
Martin  v.  G.  In.  Pen.  Ry.  Co.,  347. 
Martin  v.  Martin,  548. 
Martin  v.  Missouri  Pac.  Ry.  Co.,  489. 
Martin  v.  New  York,  etc.,  R.  Co.,  86,  87, 

499. 
Martin  v.  North  Star  Iron  Works,  38. 
Martin  v.  St.  Louis,  etc.,  Ry.  Co.,  27. 
Martin  v.  Tribune,  215. 
Martin  v.  Western,  etc.,  R.  Co.,  90. 
Martinsville  v.  Shirley,  303. 
Marty  v.  Chicago,  etc.,  Ry.  Co.,  505. 
Rlarvln  v.  Chicago,  etc.,  Ry.  C3.,45. 
Marvin  v.  New  Bedford,  307,  321. 
Marwedel  v.  Cook,  100. 
Maryland  Central  R.  Co.  v.  Neubeur,  5o0. 
Marzetti  v.  Williams,  125,  438,  441. 
Mason  V.  Barker,  6U1. 
Mason  V.  Ellsworth,  59fi. 
Mason  v.  Keeling,  2b2,  284. 
Mason  v.  Missouri,  etc.,  R.  Co.,  465. 
Mason  I'.  Sainsbury,  588. 
Mason  V.  Spartanburg  County,  35. 
Mason  v.  Thompson,  411,  412. 
Masonic  Temple  Assoc,  r.  Harris, 96. 
INlasser  v.  Chicago,  etc.,  R.  Co.,  520. 
Massey  v.  Goyder,  69. 
Masten  v.  Webb,  454. 
Ma.>iters  v.  Troy,  319,  322. 
Masters  v.  Warren,  596,  597. 
Masterton  v.  Mount  Vernon,  140,  695. 
Masierson  v.  New  York,  etc.,  R.  Co.,  509. 
Mathews  v.  Cedar  Rapids,  321. 
Mathews  v.  St.  Louis  &  S.  F.  Ry.,  86. 
Malhiason  v.  Mayer,  55. 
Matteson  v.  Strong,  129. 
Matthews  v.  Kelscy,  139. 
Matthews  v.  Warner,  491. 
Mattocks  V.  Moulton,  264. 
Matz  r.  St.  Paul  City  Ry.  Co.,  377. 
Maultby  v.  Leavenworth,  314. 


TAIJLE    Ol*    (  ITATIONS. 


639 


References  are  to  I'agoH. 


Mntcerv.  nrown.412. 

Maxuy  r.  MlHsnurl  I'ac.  Uy.  Co.,  601. 

Maxltn  r.  Town  ot  Cliamplon,  5S. 

Maxwki.l  on  sta TirrKs,  'iZl. 

Maxwell  f.  Uorard,  4U. 

Muv  r.  Htirdftt,  I'.M,  '.'S."}. 

May  V.  Central  It.  &  M.  Co.,  47.'5. 

Mavlierry  v.  (^mcord  It.  Co.,  1111. 

Mayer  r.  New  York  Cent  ,  etc..  It.  Co.,!V5. 

Maver   v.    Tbouii>soQ-liutchi.>40a    Itldg. 

I'o.,  •2.5>. 
Mayiiew  r.  Hums,  518,  .'i52. 
Mayliow  r.  Nelson,  336. 
Mavnard  v.  Boston,  etc.,  R.  Co.,  Ill,  112. 
Mayni^  t>N  Damaues,  2t>. 
Mavo  r.  HoMton,  etc  ,  It.  Co.,  474. 
Mayo  r.  .Si>rlnKllel<l,  30-2. 
Mayor  v.  IWiilcy,  2V1. 
Ma\or  V.  Koulkroil,  4:n. 
Mayor,  etc.,  Anierlciia  r.   Eldridge,  304. 
5lHyor,etc.,  Colche.stcr  r.  IJrooke,  517. 
Mayor,  etc.,  of  Knoxvillcr.  Hell,  320. 
Mayor,  etc.,  of  Lynno  ItegU    r.  llenly. 

Mayor,  etc.,  of  Savannah  f .    Cloary,  'X>. 
Mavsville,  etc..  It.  Co.  r.  Ilcrrick,  589. 
May.sville  Street  It.  &  T.  r.  Marvin,  555. 
Meiicham  r.  Dudley,  43i),  4.'!l. 
Mead  J-.  HurlhiK'ton,  etc..  It.  Co.,  119. 
Medawar  r.  Grand  Hotel  Co.,  415. 
Medina  I'.  Perkins,  145. 
Meeks  i'.  Southern,  etc.,  R.  Co.,  514. 
Melu'gan  r.  New  York,  etc  ,  K.  Co.,  500. 
Melhu.>i  r.  Oodge,  125,  12i>,  520. 
Meier  f.  Railroad  Co.,  274,  373,  374. 
Meier  r.  Shrunk,  2.VJ. 
Melnzer  r.  City  of  Itacinc,  301. 
Melliourno  r.  1.ouIhv1I1c  &  N.  It.  Co.,  300. 
Mole  r.  Delaware  &  H.  C.  Co.,  473. 
Mellor  r.  Missouri  I'ac.  Ry,  Co.,  :5S5. 
Memphis,  etc.,  It.  Co.  v.    Copclaud,  52, 

.V(4. 
Memphis  &  Little  Rock,  etc.,  R.  Co.  r. 

Ilornfall,  lit. 
.Memphis,  etc.,  It.  Co.  v.  Ilolloway,  348. 
Memphis  &Uhlo  River  Packet  Co.  v.  Mc- 

Cool,  529. 
Memphis  &  L.  R.  Co.  v.  Salinger,  479. 
Mrinphls,  etc.,  R.  Co.  v.  Southern  E.\p. 

Co.,  336. 
Memphis,  etc.,  R.  Co.  r.  Whitefleld,  381. 

Mh,  5'.)6. 
Memnhls  &  C.  R.  Co.  v.  Womack,555. 
Menders  v.  (iuadella,  257,  262. 
Meracle  r.  Down,  486. 
Merrick  f.  lUalnord,  213. 
Merrill  r.  Clareniont,  323. 
Merrlit  r.  Fitzgiblions,  35. 
Mersey  Docks  r.  GIbbs,  223,  225,  270,  292, 

2<.tS,  '.x.W.  300,  44f,. 
Messenger  r.  Pennsylvania  R.  Co.,  339. 
Messenger  r.  Dennic,  5l:i. 
Melcalf  t'.    London,   Hrlghton  &    South 

C<>Bst  Ry.  Co.,  341,  342. 
Mercer  r.  Jackson,  271. 
Merchants     Despatch   Transp.    Co.     i*. 

FIrthman,  346. 
Merchants    Despatch  Co.  r.  Cornforth, 

344 
Merchants'  Wharf  Boat  Assoc,  r.  Smith, 

59. 

Meredith  r.  Reed,  125. 

Meredith  v.  Richmond  &  D.  R.  Co.,  475. 

Mergenthaler  r.  Klrby,  76. 


Merroweathor  t'.  Nixon,  604. 

Merrill  v.  Katttcrn  It.  Cd  ,472. 

Merrill  f.  Greenville,  ^M,  4'*. 

Merrill  f.  North  YaniKiutli,  47U. 

Merrltl  r.  Claghorn,  411,  4|j. 

Merrltt  r.  Putnam,  4:^i. 

Merwln  f.  Ittigerw,  451. 

Metallic  C.  C.  Co.  r.  Fltchbarg  R.  Co.. 

34. 
Metcalfe  r.  Cun&rd  8.  S.  Co.,  77. 
Metropolitan  Ry.  Co.  r.  Jackson,  24,  23, 

«97,4(i:t. 
Metropolitan  St.  R.  Co.  r.  Johnson,  MiO. 
Metropolitan  St.  It.  Co.  f.  Powell,  49,  6<IU. 
Metz  V.  C^allfornia  S.  It.  Co.,  365. 
Melzer  f.  (;hleago,  etc.,  Ry.  Co.,  86. 
.Me.xlean  fJent.  Kv.  C;o.  c  Latiricetia,  38S. 
Mexican  N.  It.  <'o.  v.  .MubmcHu.  27. 
Meyer  r.  Atlantic,  etc  ,  It.  Co.,  122. 
Meyer  r.  Lliidell  Railway,  63. 
Meyer  r.  Second  Avenue  Ity.  Co.,  203. 
Meyers  v.  Fritz,  91. 
Meyers  f.  Wabash,  etc,  R.  Co.,  355. 
Me  vera  r.  Walker,  .M'. 
Michael  f.  Stanley,  4'.»4. 
Michaels  v.  N.  Y.  <;.  It.  Co.,  48. 
Michigan,  etc..  It  (;o.  f.  lleaton,.345. 
Michigan  ("ent.  K.  ( o.  r.  Ward,  3«iJ. 
Michigan  Cent.  It.  Co.  r.  Mineral  SprlngH 

Mfg.  Co.,:ir.o. 
.Michig.'in  Southern,  etc.,  It.  Co.   r.  Mc- 

Donough,  351. 
Michle  V.  Douglas,  6. 
Middleton  v.  Holmes,  54S. 
Midland  Ry.  {;o.  r.  Bromley.  .T62. 
.Midland  Uy.  Co.  r    Daken,  lis. 
.Midland  Ry.  Co.  j-.  (iascho,  112. 
Midland  Ry.  Co.  r.  Taylor,  259. 
MlhlllsMfg.  Co.  f.  I)av,692. 
Mllarkey  r.  Foster,  14'2. 
-Miller  r.  Chicago,  etc..  R.  Co.,  117. 
Miller  J-.  City  of  .Morrlstown,  302. 

Miller  «-.  Hancock,  107. 

Miller  r.  Martin,  85. 

Miller  f.  Manhattan  Rv.  Co... 593. 

Miller  f.  MInne.sola  .V 'N.  W.  Ry.,  215. 

Miller  «•.  New  York  *  N.&  W.  It.  Co.,  873. 

Miller  f.  Peei.les,  4i;t. 

Miller  1'.  Pennsylvania  It.  Co.,  76. 

.Miller  V.  Proctor,  255. 

.Miller  V.  Scott,  4:{:). 

Miller  r.  Scare,  445. 

Miller  f.  St.  Paul,  307,318. 

Miller  r.  Wilson.  429. 

Miller  r.  Woodhcad,  78. 

.Millie  v.  ManhattMn  Ity.  Co.,  524. 

Mllllgan  r.  \\  edge.  221. 

Mllllman  r.  N.  Y.,  etc..  R.  Co.,  331. 

Mills  r.  Chicago,  etc..  It.  Co.,  86. 

Mills  I-.  Hoffman,  257. 

.Mills  r.  llolton.  4.'>8. 

.Mills  V.  New  York,  etc,  R.Co.,  ISO. 

Mills  V.  Stark,  III. 

.Millwardc.  Midland  Ry.  Co.,  233, 

MINheiiner  r.  Sullivan,  131. 

Milwaukee,  etc..  It.  Co.  v.  Arm*,  24.580. 

Milwaukee,  etc..  It.  Co.  r.  KellogK,  46. 

.Miner  f.  Conn.  Klver  It.  Co..  39,  ♦Ml. 

Mliierley  v.  Inlon  Ferry  Co.,  4«i. 

.Minor  f.  Sharm,  lus. 

Minor  V.  Sisples,  412. 

.Minster  f.  t  liirenn  Ry.  Co  .  510. 

Mishler  r.  O'Grady.  Jtl. 

Mlfsinier  f.  Railroad  I'o.,  373. 


640 


TABLE    OF    CITATIONS. 


References  are  to  Pages. 


Mississippi  R.  Co.  V.  Kennedv,  364,  365. 
Mississippi,  etc.,  R.  Co.  v.  Miller,  111. 
Missouri  Furnace  Co.  v.  Abend,  473,474. 
Missouri  Pac.  Ry.  Co.  v.  Abney,  123. 
Missouri  Pac.  Ry.  Co.  r.  Baler,  554. 
Missouri  Pac.  Ry.  Co.  v.  Bartlett,  86. 
Missouri  Pac.  Ry.  Co.  v.  Bond,  554. 
Missouri  Pac.  Ry.  Co.  v.  Breeding,  359. 
Missouri  Pac.  Ry.  Co.  v.  Childers,  354. 
Missouri,  etc.,  R.  Co.  v.  Cornell,  91. 
Missouri  Pac.  Ry.  Co.  v.  Cornwall,  345, 

354. 
Missouri  Pac.  Ry.  Co.  v.  Cullers,  45. 
Missouil  Pac.  R.  Co.  v.  Dunham,  373. 
Missouri  Pac.  R.  Co.  v.  Eckel,  112,  115, 

lis. 
Missouri  Pac.  R.  Co.  v.  Fagan,  338. 
Missouri  Pac.  R.  Co.  v.  Finley,  130. 
Missouri  Pac.  R.  Co.  v.  Harris,  345,  351, 

352. 
Missouri  Pac.  R.  Co.  v.  Henry,  540, 547. 
Missouri  Pac  R.  Co.  v.  Kincaid,  88. 
Missouri  Pac.  R.  Co.  v.  Kocher,  113. 
Missouri,  etc.,  R.  Co.  v.  Leggett,  113. 
Missouri  Pac.  R.  Co.  v.  Lee,  501. 
Missouri  Pac.  R.  Co.  v.  Levi,  338. 
Missouri  Pac.  R.  Co.  v.  Lewis,  555, 
Missouri  Pac.  R.  Co.  v.  Long,  391. 
Missouri  Pac.  R.  Co.  v.  Lyde,  598. 
Missouri  Pac.  R.  Co.  v.  Nevill,  356. 
Missouri  Pac.  R.  Co.  v.  Peay,  501. 
Missouri  Pac.  R.  Co.  v.  Renfro,  95. 
Missouri  Pac.   R.  Co.   v.   Ricketts,  112, 

122. 
Missouri  Pacific  R.  Co.  v.  Roads,  116. 
Missouri  Pac.  R.  Co.  v.  Russell,  359. 
Missouri  Pac.  R.  Co.  v.  Scott,  528. 
Missouri  Pac.  R.  Co.  v.  Somers,  494. 
Missouri   Pac.  R.  Co.  v.  Texas  &  P.  Ry. 

Co.,  351,  375. 
Missouri  Pac.  R.  Co.  v.  Twiss,  361. 
Mitchell  V.  City  of  Clinton,  471. 
Mitchell  V.  Chicago,  etc.,  R.  Co.,  379,  381. 
Mitchell  V.  City  of  Rome,  7,  8,  9. 
Mitchell  V.  Darley  Main  Colliery  Co.,  9, 

70,  303. 
Mitchell  V.  Georgia  R.  Co.,  352,  354. 
Mitchell  V.  L.  &  Y.  Ry.  Co.,  334. 
Mllcliell  V.  Minis,  548. 
Mitchell  V.  Plattsburg,  318. 
Mitchell  V.  Rochester  Ry.  Co.,  44. 
Mitchell  V.  Tacoma  Ry.  &  M.  Co.,  520. 
MoAK'8  U^•r/ERHIL^  ON  Torts,  494. 
Moberly  v.  Kansas  City,  etc.,  Ry.  Co., 

471. 
Mobile,  etc.,  R.  Co.  v.  Ashcraft,  487. 
Mobile,  etc.,  R.  Co.  v.  Copeland,  360. 
Mobile,  etc.,  R.  Co.  v.  Crenshaw,  470. 
Mobile, etc.,  R.  V.   Hopkins,  365,  386. 
Mobile,  etc.,  R.  Co.  v.  Hud.son,  528. 
Moliile.etc,  R.  Co.  v.  Klein,  485. 
Mobile,  etc.,  R.  Co.  v.  Mullins,  489. 
Mobile,  etc.,  R.  Co.  v.  I'rewltt,  59. 
Moblle.etc.,  R.  Co.  v.  Seals,  204. 
Moblle,etc.,R.  Co.  v.  Stroud,  502. 
Mobile, etc.,  R.  Co.  v.  Wiitlv,  462,552. 
Mobile,  etc.,  R.  Co.  v.  Welher,  336. 
Mobile,  etc.,  R.  Co.  v.  Williams,  122,336. 
Moe  V.  Smiley,  535. 
Moollering  v.  Evans,  8,  10. 
Motfiit  V.  Bate  man,  C3,  79,  458,  523. 
Moffatt  V.  Tenney,  543. 
Mogarlty  v.  Wilmington,  302. 
Mohr  V.  Cliicago,  etc.,  R.  Co.,  340. 


Mollfe    Gibson   Con.   M.   &  BI.  Co.  v. 

Sharp,  553. 
Monmouth  v.  Sullivan,  316. 
Monongahela  Bridge  Co.  v.  Bevard,  146. 
Monongahela  City  v.  Fischer,  466. 
Monroe  v.  The  Iowa,  345. 
Montgomery  v.  Koester,  131. 
Montgomery  Co.  Union  Agt.  Soc.  v.  Har- 

wood,  592. 
Montgomery  v.  Trustees  Augusta,  7. 
Montgomery  v.  Wright,  319. 
Montgomery,  etc.,  Ry.  Co.  v.  Chambers, 

463. 
Montgomery,  etc.,  R.  Co.  v.  Culves,  360. 
Montgomery,  etc.,  Ry.  Co.  v.  Tliompson, 

479. 
Montgomery,etc.,Ry.Co.  I'.Wallette,  373. 
Montgomery  Gas  Light  Co.  v.  Montgom- 
ery &E.  Ry.  Co.,  461,  471. 
Monteithr.  Flnkbeiner,  103,278. 
Moody  V.  Minneapolis   &  S.  T.  Ry.  Co., 

120. 
Moody  V.  New  York,  102. 
Moody  V.  Osgood,  598. 
Moody  V.  Ward,  286. 
Moon  V.  Iowa,  306, 318. 
Mooneyr.  Hudson  River  R.  Co.,  509. 
Mooney  v.  Trow  D.,  P.  &  B.  Co.,  65. 
Moore  V.  Chicago,  etc.,  Ry.  Co.,  87. 
Moore  v.  City  of  Shreveport,  472. 
Moore  v.  Edison  E,  I.  Co.,  479. 
Moore  v.  Gadsden,  28,  309. 
Moore  v.  Kenockee  Tp.,  144. 
Moore  v.  Met.  Ry.  Co.,  203. 
Moore  v.  New  York,  etc.,  R.  Co.,  501. 
Moore  v.  Norfolk  &  W.  R.  Co.,  479. 
Moore  v.  Parker,  531. 
Moore  v.  Pennsylvania  R.  Co.,  51. 
Moormannv.  Seattle  &  M.  Ry.  Co.,  592. 
Mootry  v.  Town  of  Danbury,  145. 
Morey  v.  Fitzgerald,  316. 
Morehouse  V.  Dixon,  315. 
Moreland  v.  Holland,  257. 
Moreton  v.  Hardern,  603. 
Morford  v.  Wood  worth,  588. 
Morgan  v.  Durfee,  544,  554. 
Morgan  v.  Cox,  271. 
Morgan  v.  Giddings,  428. 
Morgan  v.  Joyce,  436. 
Morgan  v.   London   General   Omnlbne 

Co.,  229. 
Morgan  v.  Penn.  R.  Co.,  75. 
Morgan  v.  Ravey,  414. 
Morgan  v.  Roberts,  433. 
Morgan  v.  Southern   Pac.    Co.,  2S6,  489, 

552. 
Morgan  v.  Dibble,  337. 
Morier  v.  St.  Paul,  etc.,  Ry.  Co.,  200. 
Morley  v.  Morley,  255. 
Morrassy  v.  New  York,  308. 
Morressey  v.  Providence  &  W.  R.  Co.,  37. 
Morrill  V.  Graham,  428. 
Morrill  V.  Hurley,  93. 
Morris  v.  Chicago,  etc..  R.  Co.,  462,595. 
Morris  v.  Eighth  Av.  R.  Co., .52. 
Morrisv.  I^uisville  &  N.  R.  Co.,  538. 
Morris  v.  New  York  Cent.  R.  Co.,  397. 
Morris,  Adm's  v.  Chicago,  etc.,  R.  Co., 

50S,  512. 
Morris,  etc.,  R.  Co.  v.  Haslan,  502. 
Morrison  v.  Broadway  &   S.  A.  li.  Co., 

376. 
Morrison,  r.  Buchsport  R.  Co.,  95. 
Morrison  v.  Davis,  47,  338. 


TAHLK    OF    CITATIONS. 


fill 


Refereucrs  are  to  PaiireR. 


Morrison  r.  Erie  Uy.  Co.,  r>i,  .M7. 

MorrlBon  r.  I.aihltiior,  G. 

MorlsBfV  V.  Chicago,  etc.,  U.  Co.,  9!>. 

MorrlsHt-v  r.  Kactfrn  I£.  Co.,  KQ. 

Slorrit  r.  \.  Ennt  Uv.  Co.,  .•?:«. 

Morrow  r.  Norlli  liiriuiDgbam    St.    Hy. 

(Jo.,  44. 
Mdusi:  on  Rank.<»,  444. 
Morse  i-.  Ulchniond,  143. 
Morton  i<.  (-JloMter,  482. 
Morton  v.  Smith,  ;w;». 
Mose  f.  llaslinjrs  Gas  Co.,  200. 
Moselcyi'.  Wilkinson,  21 1. 
Mosher  r.  Inhabitants  of  Smithflcld,  472. 
.Mosler  f.  lU-nle,  127. 

Mortcs  f.  Ho-ton,  etc  .  It.  Co.,  340,345,346. 
Moss  V.  I5tirlini:ton,  :U1. 
Mo98  v.  I'ardrldKC,  127,  131. 
Mott  V.  Consumers  Ice  Co.,  206. 
.Moultoii  r.  Aldrlch,478. 
Moullou  f.  Inhabitants  of  Scarborcngh, 

Moulton  r.  Phillip.-),  .W. 

Moiilton   V.   St.  Paul,  etc.,  Ry.   Co.,  347, 

349, :«.-). 
Mound  City  P.  &  C.  Co.  v.  Conlon,  205. 
Mower  c.  Lleccster.  135. 
Moylan  r.  Second  Av.  II.  Co.,  53. 
Moyle  r.  Jenkins,  238. 
Moyle  r.  Movie,  258. 
Moynlhan  r.'W'hIdden,  78. 
Muccl  f.  Honi:liton,423. 
Mucklt'j'.  KochcBter  Kv.  Co.,  580. 
Muellerr.  Htihacda  Mlii.  Spring  Co.. 592. 
Mueller  r   Milwaukee  St.  lly.  Co.,  35. 
Muhl's  Aduir.  v.  Michigan  Southern  R. 

Co.,  5:J5. 
MiilcalrncB  v.  JancRville,  301,  531. 
Mulchahcy  v.  Washburn  Car  Wheel  Co., 

544. 
Muldoon  r.  Seattle  CItyRy.  Co.,  52,377. 

Mulherrln  r.  D.  D.  L.  &  W.  R.  Co., 249. 

JIulherrlnr.  Henry,  127. 

Mullaney  r.  Snence,  7s. 

Mullen  r.  St.  John,  523.  529,  .530,  532. 

Mnllerv.  McKapson,  129. 

MiiHer  ?•.  Ncwijurg,  313. 

Mulligan  r.  New  York  &  R.  IJ.  Uy.  Co., 

20S. 
Muivane  r.  South  Topeka,  317. 
Mulvlhill  r.  Hates,  200. 
Muniliy  r.  IJowdcn,  216. 
Munday  v.  Thames  Iron  Works  Co.,  227, 

242. 
Munger  v.  Waterloo,  322. 
Muuk  r.  City  of  Watertown,  304,  305. 
Muniey  v.  Hull,  503. 
Munn  f.  Hirchard,  346. 
Miinn  V.  Keed,  129. 
Munro  f.  Puclllc  Coast  D.  &  U.  Co.,  542, 

643. 
Munster  v.  S.  K.  Rv.  Co.,  :M2. 
Blurchl.son  r.  Sergent,  415. 
Murdock  v.  Walker,  3S. 
Murphy  r.  Atlantic  &  W.  P.  R.  Co.,  401. 
Murphy  r.  Brooks,  140,  141. 
Murphy  v.  (Jaralli,  213. 
Murphy  r.  Chicago,  etc.,  R.  Co.,  91,  472. 
Murphy  c.  C.  R.  I.  &  P.  R.  Co.,  24<5. 
Murphy  v.  Lowell,  3<td. 
Murphy  v.  New  Haven  Co.,  561. 
Mur|)hy  r.  Now  York,  etc.,  R.  Co.,  545, 

650. 


.Murphy  r.  St.  I.onl8,  etc.,  R.  Co.,  54,  S78. 
.Murphy  v.  Suburlmn  It.  T.  Co.,  Ul. 
Murray  f.  Marshall.  413. 
.Murray  r.  .Mr.slmne.  71.. VW,  682. 
Mur|>hy  f.  Met.  IH»trl(t  Rjr.  Co.,  404. 
Murray  r.  MI.HHourl  Pariflc  Uy.Co.,471. 
.Murray  f.  Youni:,  IJti.  Z"'. 
Murrell  r.  Paclllc  KxprewM  Co.,  359. 
.Murtaugh  r.  New  York,  etc.,  R.  Co.,  494. 
Muse  V.  Stern.  214. 
.Mu«er  r.  Holland,. 348. 
-MiiHier  I-.  The  Chicago,  etc.,  Ry.  Co.,  896. 
Myers  i:  Knitlninre  A  O.  K.  Co.,  50*). 
.Mynard  c.  Syracu.-^c,  etc.,  R.  Co.,  ;W3. 
Myunlug  v.  Detroit,  L.  &  N.  R.  Co.,  473. 
489. 

N. 

Nagel  V.  Missouri  I'nciflc  IL  Co.,  78,  875. 

493,  619. 
Nagicr.  Alexandria  A  K.  Ky.  Co.,  372. 
Nagle  r.  California  S.  K.  Co.,  475. 
Nance  v.  St.  I.ouin,  etc.,  IL  Co.,  122. 
Najder  v.  Kiilwinkle.  7. 
Nahh  r.  Muldoon.  454. 

^a^ih  r.  PrI i..'>48. 

Nanh  f.  Sliarpe.593. 

Nash  V.  Swinburne,  438. 

Nashua  1.  &  S.  Co.  f.  Worcester  A  \.  R. 

Co.,  34. 
NaBhvlllc,  etc.,  R.  Co.  r.  Carroll,  491. 
Nashville,  etc.,  R.  Co.  v.  CumnuH.  111. 
Nashville,  etc.,  R.  Co.  r.  Kakin,  555. 
Naahvllle,  cic,  Co.  v.  K-ten,  :iv<. 
Nashville,  etc  ,  R.  Co.  r.  .Johnson,  845. 
Nashville,  etc.,  R.  Co.  r.  Prince,  5.50.  687. 
Nashville,  etc.,  R.  Co    t:  Siiilili.  .540. 
Nashville,  etc.,  R.  Vo.  v.  Spruyldirg.  360. 
Nashville,  etc.,  K.  C-o.  iv  Sleve'iut,  .VI2. 
Nasler  r.  Chicago,  etc..  Ry.  Co.,  51. 
Nalctiez  Cotton  M;ll8  Co.  r.  Mulllns,  &t9. 
National    Rank    of    Conitiiotiwealtti     v. 

Crocers'  National  Bank,  442. 
National  Itank  of  North  America,  otc  r. 

Bangs,  442. 
Nave  r.  Flack.  62.  72,  2S0. 
Navasota  v.  Pearce,  137. 
Naylori'.  Mountain  Slono  Co.,  319. 
Neal  V.  Boston,  821. 
Ncal  V.  Farmer,  .548. 
Neal  t'.  Wilmlnirton.  etc.,  R.  Co.,  340. 
Neanow  t:  IMlech,  461,  482. 
Necker  v.  llarvcv.  12. 
Needham  f.   Grand   Trunk  R.   Co.,  640, 

512,  54t>,  655. 
Needham  v.  Louisville  &  N.  R.  Co.,5, 
Nell's  App  ,  2.'>5.  2.57. 
Nehrbas  v.  Central,  etc  ,  It.  Co..  470. 
Neler  c.  Mi.>*i*ouri  Pac.  Ry.  Co.,  471. 
Neiison  r.  James,  444. 
Neitzcy  r.  Baiiimoro  A  P.  R.  R.  Co.,  JS9. 
Nelling  I-.  IndUHtrial  Mfg.  Co.,  4m, 
Nelson  f.  Atlantic,  etc.,  R.  i;o.,  46S. 
Nelson  v.  I'.iislon  A  N.  K.  Co.,  591. 
Nelson  f.   Itondurant.  548. 
Nelson  r.  Chicago,  etc.,  R.  Co.,  30.  119, 

474. 
Nelson  r.  CItv  of  Helena,  471. 
Nelson  v.  Harrington,  424,  4'2«J,  4M. 
Nelson  r.  Lake  Sliore,  etc,  Ky.  Co.,M8. 
Nelson    r.  Liverpool  llrowery  Co.,  101, 
102. 


41 


042 


TABLE    OF    CITATIONS. 


References  are  to  Pages. 


Nelson  v.  St.  Louis  &  S.  F.  Ry.  Co.,  114, 

122. 
Nelson  v.  Vermont,  etc.,  Ry.  Co.,  371. 
Nelson  V.  Woodraff,  339. 
Nesbet  i\  Town  of  Gardener,  508. 
Nevln  V.  Pullman  Palace  Car.Co.,  408. 
Nevins  v.  Lowe,  423. 
Newall  V.  Bartlett,  73. 
Newberg  r.  Munshower,  454. 
Newbold  V.  Coltman,  455. 
New  Brunswick  Steam  Nav.  Co.  v.  Tiers, 

337. 
Newcomb  v.  Boston  Protective  Depart- 
ment, 461. 
Newell  V.  Cowan,  548. 
New  England  Express  Co.  v.  M.  C.  R. 

Co.  339. 
New  England  Ry.  Co.  v.  Wauless,  281. 
New  Jersey  Express  Co.  v.  Nichols,  471. 

474. 
New  Jersey  R.  Co.  v.  Kennard,  378. 
New  Jersev  Transp.  Co.  v.  West,  502. 
Newlin  Tp.  v.  Davis,  143. 
Newman  v.  Ernst,  65. 
Newman  v.  Kizer,  433. 
Newman  v.  Pliillipsburgh  St.  C.  R.  Co., 

515, 
Newman  v.  Washington,  432. 
New  Orleans,   etc,,   Ins.    Co.    v.    New 

Orleans,  etc.,  R.  Co.,  345. 
New  Orleans,  etc.,  R.  Co.  v.  Allbritton, 

527. 
New  Orleans,  etc.,  R.  Co.  v.  Enochs,  528. 
New  Orleans,  etc.,  R.  Co.  v.  Reese,  221. 
New  Orleans,  etc.,  R.  Co.  v.  Schneider, 

53,  378,  490. 
Nev/ Orleans,  etc.,  R.  Co.  v.  Thomas, 384. 
Newport  News  &  M.  V.  Co.  v.  Howe,  40. 
New  River  Co.  v.  Johnson,  298. 
New  York,  etc.,  R.  Co.  r.  Ball,  382. 
New  York,  etc.,  R.  Co.  v.  Estill,  353. 
New  York,  etc.,  R.  Co.  v.  Kuches,  380. 
New  York,  etc.,  R.  Co.  v.  FralofiF,3ti4.  405. 
New  York,  etc.,  R.  Co.  v.  Kellam,  :A)0. 
New  York,  etc.,  R.  Co.  v.  Kutac.  509. 
New  York,  etc.,  R.  Co.  r.  Lockwood,  384. 
New  York,  etc.,  R.  Co.  v.  Lyons,  494. 
New  York,  etc.,  R.  Co.  v.  Martin,  437. 
New  York,  etc.,  R.  Co.  v.  Randel,  505. 
New  York,  etc.,  R.  Co.  v.  Skinner,   112, 

121. 
New  York,  etc.,  R.  Co.  v.  Steinberger, 

.508,  509,  510. 
Nicholas  V.  New  York  Central,  etc.,  R. 
Nichols  V.  Chicago,  etc.,  R.  Co.,  478. 
Nichols  V.  Dennis,  434. 
Nichols  V.  Gt.  Southern  Co.,  399. 
Nichols  V.  Marsland,  26,  92. 
Nichols  V.  City  of  Dnluth.  302. 
Nichels  V.  St.  Paul,  306. 

Co.,  353. 
Nicholson  v.  Erie  R.  Co.,  279. 
Nicholson  v.  L.  &  Y.  Ry.  Co.,  389. 
Nicholson  V.  Mounsey,  225,  446. 
Nlckerson  v.  Bridgeport  Hydraulic  Co., 

13. 
Nlckerson  v.  Harrlman,  540. 
Nicklln  V.  Williams,  9. 
Nlnlngcr  v.  Norwood,  93. 
Ni.sBcn  V.  Missouri  R.  Co.,  480. 
Nltro-  I'hosphate  Co.  v.  L.  &  St.  K.  Docks, 

29,  43,  45,  5!«. 
Nixon  V.  Phelps,  432. 
Noble  V.  City  of  Richmond,  136,  317. 


Noble  V.  St.  Joe  &  B.  H.  St.  Ry.  Co.,  39, 

Noble  V.  Whetstone,  463. 

Nobles  V.  Hogg,  2e4. 

Noblesvllle,  etc.,  Gravel  Road  Co.  v. 
Gause,  201. 

Noblesvllle,  G.  &  I.  Co.  v.  Loehr,  37,483. 

Noblesville,  G.  &  I.  Co.  v.  Teter,  38. 

Noe  V.  Chicago,  B  &  Q.  Ry.  Co.,  95. 

Nolan  V.  Brooklyn  City  R.  Co.,  52,  377. 

Noonan  v.  City  of  Albany,  302. 

Noonan  v.  Stillwater,  311. 

Norcross  v.  Norcross,  411,  417. 

Nordemeyer  v.  Loescher,  362. 

Norfolk,  etc.,  R.  Co.  v.  Groseclose,  515. 

Norfolk,  etc.,  R.  Co.  v.  Ormsby,  515. 

Norris  v.  Eohler,  283,  534. 

Norris  v.  Saxton,  65. 

Norris  v.  Savannah,  F.  &  W.  Ry.  Co., 336. 

Nosier  v.  Chicago,  etc,,  Ry.  Co.,  500. 

North  V.  Smith,  206,  526. 

North  Vernon  v.  Voegler,  302. 

Norton  V.  Cooper,  429. 

Norton  V.  Louisville  &  N.  R.  Co.,  494. 

Norton  v.  Nye,  455. 

Norton  v.  Sewall,  13,  286. 

North  Birmingham  St.  R.  Co.  r.  Calder- 
wood,  461,  470. 

North  Chicago  City  Ry.  Co.  v.  Gastka,  206. 

North  Chicago  R.  "M.  Co.  v.  Johnson,  464. 

North  Chicago  St.  Ry.  Co.  v.  Williams, 
464. 

North  Eastern  R.  Co.  v.  Barnett,  373. 

North  Eastern  R.  Co.  v.  Sineath,  112,  121. 

Korth  Eastern  R.  Co.  v.  Wauless,  272, 
279. 

Northern,  etc.,  R.  Co.  v.  Price,  462. 

North  Hudson  County  Ry.  Co.  v.  Flana- 
gan, 521. 

North  Missouri  R.  Co.  v.  Stephens,  437. 

Northern  Pac.  R.  Co.  v.  Ellison,  540. 

Northern  Pacific  R.  Co.  v.  Herbert,  244. 

Northern  Pac.  R.  Co.  v.  Holmes,  499. 

Northern  Pac.  R.  Co.  v.  Lewis,  60,  89.472. 

Northern  Penn.  R.  R.  Co.  v.  Kirk,  571. 

Northern  Transp.  C.  v.  Chicago,  302. 

North  Whitehall  v.  Keller,  437- 

Norwalk  Gaslight  Co.  i-.  Borough  of  Nor- 
walk,  215,  216,  292. 

Norway  Plains  Co.  v.  Bradley,  97. 

Norwich  V.  Breed,  82,  83. 

Norwood  V.  King,  430. 

Norwood  V.  Somerville,  314. 

Nowell  V.  New  York,  531. 

Nowell  V.  Wright,  449. 

Noyes  V.  Town  of  Bo.scawen,  510. 

Nugent  r.  Boston,  etc.,  Corp.,  372,  489. 

Nugent  V.  Smith,  333,  334. 

Nunn  V.  The  Georgia  R.  Co.,  380. 

Nutting  V.  Connecticut  River  R.  Co.,  360. 

Nye  V.  Macdonald,  448. 

o. 

Oakes  v.  Northern  Pass.  R.  Co.,  364. 
Oakes  v.  Spaulding,  125,  284. 
Oakland  v.  Fielding,  599. 
Oakland  City  A.  &  1.  Soc.  v.  Bingham, 

206. 
Oates  V.  Union  Pac.  R.  Co.,  555. 
O'Brien  v.  City  of  St.  Paul,  302 
O'Brien  r.  Greenbaum,  106. 
O'Brien  v.  McGllnchey,  461. 


TABLE    Of    CITATIONS. 


643 


Rcfercucos  nro  to  TappH. 


O'nrlcn  r.  Tfttnm,  280,  470. 

O'Brien  r.  Valll,413. 

O'CulliiKlian  r.  Itoilc,  72. 

Occult  I'.  Killcry  IJridgc  Co.,  143. 

OchMcnbolnr   Shupley,  201,  20ft. 

O'Connell  v.  East  Tcnn.,  V.  &  G.  R.  Co., 
96. 

O'Connell  r.  LewUton,  481. 

O'Oonnellf.  St.  Louis  C.  A  W.  Ity.  Co., 
373. 

OH'onnorr.  New  York  &  Y.  S.  L  Co.,  5'.I2. 

O't.'onnor  f.  Andrews,  KK'i. 

O'Connorr.  CurliH.  lul,  IOC. 

O'Connor  t'.  Kond  du  Lac  U.  Co.,0.'). 

O'Connor  v.  lIUnolH  Cent.  It.  Co.,  78. 

O'Connor  f.  Mihtiourl  I'ac.  Uy.  Co.,  501. 

O'Connor    v.   North  Triukcc  Ditch  Co.. 
401. 

O'Connor  v.  PlttshnrR,  G. 

Oderklik  1'.  Fargo,  .Mt. 

O'Donnell  r.  Allegheny,  etc.,  R.  Co.,  381. 

Ogburn  v.  Connor,  'j;i,  'M. 

O'ciormiin  r.  Morris,  :10.'). 

Ohio,  etc.,  K.  Co.  r.  Dunbar,  339,  351,  372. 

Ohio,  etc.,  H.  Co.  v.  Emrlch,  300. 

Ohio,  etc.,  K.  Co.  r.  Heady,  112. 

Ohio,  etc.,  U.  Co.  r.  Morey,  223. 

Ohio,  etc.,  K.  Co.  r.  Neady,  110. 

Ohio,  etc..  If.  Co.  V.  People.  115. 

Ohio,  etc.,  K.  Co.  V.  Rowland,  115. 

Ohio,  etc.,  R.  (,'o.  r.  t^clilebe,  37J). 

Ohio,  etc.,  R.  C:o.  v.  Selhy,  384. 

Ohio,  etc.,  R.  Co.  r.  .Stratton,  .^17. 

Ohio,  etc.,  R.  Co.  r.  Thlllnian.  'JC. 

Ohio,  etc.,  R.  Co.  r.  Tindall.  542. 

Ohio,  etc.,  R.  Co.  f.  Yohe,  330. 

O'Harr  r.  Alexander,  427. 

O'llalloran  i\  Marshall,  432. 

o'llarai'.  Hrophy,  42'.(. 

O'llara  v.  Wells,  423. 

O'llaiilan  V.  G.  W.  Ry.  Co.,  350. 

Ohrbv  r.  Ryde  Coninirs.,  2y5. 

on  Citv  Fuel  .Supply  Co.  r.  Houndy,  461. 

O'Keefer.  l^hlcago.  etc.,  R.  Co.,  402. 

Oldlleld  t\  New  York  &  llarleui  R.  Co., 
M3. 

Ole.son  r.  Brown,  .V.K). 

Oleson  V.  ('Ity  of  I'latteniouth,  3. 

Oliver  f.  LaValle.  507. 

Oliver  r.  N.  E.  Ry.  Co.,  200. 

Oliver  f.  North  I'ac.  Tr.  Co.,  B95. 

Oliver  r.  Town  of  La  Valle,  42. 

Oliver  i\  Worcester,  73. 

Olsen  V.  Oregon,  etc.,  R.  Co.,  501. 

Olson  r.  Chicago,  etc.,  Ry.  Co.,  55. 

OlBon  r.  CrosHiiian,  411,  4l3,  415,416. 

Omaha  &  R.  U.  R.  Co.  i:  Severln,  114. 

Omaha  &  It.  U.  Rv.  Co.  r.  Morgan,  .V20. 
I  O'.Malley  v.  St.  Paul,  .M.  &  M.  Ry.  Co.,  78. 
j   O'Mara  v.  Hudson,  5()3. 
I  0'.Mellia  I'.  Kansas  Clly,  etc.,  R.  Co.,  5.')4. 

Onislauer  i:  Philadelphia  (;o.,  27. 
I  Onderdonk  v.  New  York  &  S.  B.  Ry.  Co., 
1       .SSO. 

1  O'Nell  V.  City  of  New  Orleans,  136. 
!  O'Neil  r.  Detroit.  307. 
i  O'Neill  V.  Harklns,  0. 
'  O'Neill  V.  New  York,  O.  &  W.  Ry.  Co.,  87. 

O'Neill  r.  Tp.  of  Deerlleld.  146. 
'  O'Nell  r.  Village  of  West  Branch,  306,.322. 

Oppenhelm  r.  White  Lion  Hotel  Co.,  413. 

Opsahl  V.  Judd,  4i),  480. 

Orange  City  v.  Brown,  314. 

Orchard  Place  Land  Co.  v.  Brady,  93. 


Orcutt  f.  Northern  Pao.  It  Oo  ,  889. 
Oregon  Ry.  A  Nav.  Co.  v.  Dacrea.  IIS. 

372. 
Ormc  f.  RobcrtH,  131,  132. 
OriMsbee  »•.  BoHton,  etc.,  R.  Co.,  SO,  Ml 
<»'Uourko  r    Peck,  73. 
Orr  c.  Garabold,  4s<.i 
Ortt  f.    MluneapollH  A  .SL   I^  Ry    Co.. 

344,  -MW. 
Osborn  r.  Jacknon,  2:W. 
Osborn  I-.  Union  Ferrv  Co  ,210. 
Osliome  r.  Detroit,  314,  3r.i,  .!J1,  32-2. 
O.Mborne  v.  (;illelt,  54.'.,  .'.48,  64U,  iW. 
Osborne  r.  Hamilton,  300. 
Osborne  r.  Morgan,  2.'>3. 
0«lnciip  !■•  Nichols,  132. 
Osten  r.  .Jerome, '>4. 
Osleray  r.  Pac.  R.  Co., 32, 
O'.'^ulllvan  r    .Norwood,  103. 
Otl.s  r.  .Janesvllle,  506,  507. 
Oils  f.  Thorn,  MS. 
Otl  V.  Bulfal.«,314. 
Oilen  f.  Cohen,  37. 
Ottumwa  r.   Parks,  140. 
Ouiiilt  r.  Hensliaw,  3ti4,  ZtT!. 
Overby  v.  C.  A  O.  Kv.  Co.,  4r4J. 
Overen<l,  (iurney  A  Co.  r.  (iibb.  327. 
Overcnd,  Gurney  A  Co.  v.  Gurney,  325, 

327. 
Ovcrholt  t".  Vlcths.  115. 
Overton   r.  Freeman,  222,  224. 
Owen  r.  Brockschinlilt,  545. 
f)wen  f.  Burnett,  :U(>,  X')l. 
Owen  f.  Campbell,  2.').'!. 
Owen  V.  G.  W.  Ry.  Co.,  3*.). 
Owen  V.  Peebles,  '2Cu,. 
Owen  f.  Ixiulsvlllc  A  N.  R.  Co.,  3.'i3. 
Owens  V.  Kansas  Cliv,  etc.,  Ky.  Co.,  43,44. 
Owens  r.  Missouri  Pac.  IJy.  Co.,  fiO;l. 
Ovvriis  V.  Rlchmonil,  elc.,'R.  Co.,  473. 
Owlngs  r.  .Jones,  102. 
Oxford  r.  Prior,  410. 
0.\ley  V.  St.  Louis,  etc.,  R.  Co.,  S52. 


P. 


Pabitt  r.  Bcltiniore,  etc.,  R.  Co.,  381. 
Paclllc  E.\j)rc88  Co.  r.  Darnell,  340,602. 
Pacific  Exp.  Co.  t'.  Laskor  R.  E.  A«aoo., 

603. 
Pacific  Exp.  Co.  f.  Smith,  603. 
Packet  Co.  r.  McCue.  .'►»!. 
Packard  i-.  Taylor,  337,  3»iO. 
Paddock  v.  Colbv,  AM. 
I'.iddon  f.  Ulchardson,  2»".3. 
Puducah,  etc  ,  K.  Co.  r.  Hoebl,  471,503. 
I'age  f.  Buck.sport,  4.S5. 
Page  r.  Defries,  210. 
I'atne  v.  Chandler,  07. 
Painter  r.  PItt-l.urgh,  224. 
Palmer  v.  Al<hison.  etc..  R.  Co.,.'«7. 
Palmer  f.  Chicago  B.  A  t^.  R.  Co.,  30a 
Palmer  v.  Conaiit,  .'.OH. 
Palmer  r.  Missouri  Pnc.  R.  Co.  89. 
Palmer  r.  Pennsylvania  Co.,  316. 
Palmer  r.  lUih  .<  N.  W.  Ry.  Co.,  371. 
Palmer  r.  Wadd.dl, '.'3. 
I'almeter  r.  Wagner,  401. 
Pannell  c.  Nashville,  etc.,  IL  Co.,  MS. 
Panther  r.  Trauman,  116. 
Panton  i-.  Holland,  0. 
Papworth  t .  City  of  Milwaukee,  309. 


644 


TABLE   OF   CITATIONS. 


References  are  to  Pages. 


Park  r.  Board  Cotn'rs.,  145. 

Park  V.  O'Brien,  473. 

Parke  v.  City  of  Seattle,  302. 

Parker  v.  Adams,  64,  65. 

Parker  v.  Barnard,  62,  72,  73. 

Parker  v.  Colio'es,  37. 

Parker  v.  Flags,  337. 

Parker  v.  Gt.  Western,  334. 

Parker  v.  Lake   Shore  &  M.  S.  Ry.  Co., 

112,  114,  116. 
Parker  v.  Latner,  481. 
Parker  v.  Macon,  305. 
Parker  v.  Portland  Publishing  Co.,  75, 

279. 
Parker  v.  Rools.  438. 
Parker  v.  S.  B.  Ry.  Co.,  367. 
Parker  v.  Springfield,  316. 
Parker  v.  Waycross  &  F.  R.  Co.,  222. 
ParkhiU  v.  Town  of  Brighton,  315. 
Parkhurstr.  Foster,  411. 
Parkhurst  v  Johnson,  211. 
Parmelee  v.  Farro,  464. 
Parmelee  t".  Fi>her,  364,405. 
Parmelee  v.  Raymond,  590. 
Parnaby  v.  Lancaster  Canal  Co.,  300. 
Parody  v.  Chicago,  etc.,  R.  Co.,  406. 
Parrott  v.  Housatonic  R.  Co.,  603. . 
Parrottw.  Wells,  288. 
Parry  v.  Smith,  11,  291. 
Parsons  v.  Hardy,  337. 
Parsons  v.  Lindsay,  589. 
Parsons  V.  Manchester,  319. 
Parsons  V.  St.  Matthew  Bethnal  Green, 

134. 
Parsons  on  Ship.  &  Adm.,  491. 
Partlaw  v.  Hagarty,  125,282. 
Partridge  v.  Gilbert,  7. 
Partridge  v.  Scott,  9. 
Pas.smore  v.  W.  U.  Tel.  Co.,  594. 
Pastene  v.  Adams,  38,  72. 
Patchell  V.  Irish  N.  W.  Ry.  Co.,  389. 
Patee  v.  Adams,  131. 
Patent  Safety  Gan  Cotton  v.  Wilson,  3, 

441. 
Paton  V.  Farmer,  255. 
Patten  v.  Chicago,  etc.,R.  Co.,  395. 
Patten  v.  Rea,  200. 
Patten  v.  Wiggln,  422,  423,  424. 
Patterson  v.  Mclver,  59. 
Patterson  v.  Pittsburgh,  etc.,  B.  Co.,  494. 
Patterson  v.  Railroad  Co.,  495, 
Patterson  v.  Wallace, 542. 
Pattison  v.  Syracuse  Bank,  59,  440. 
Patzach  v.  Von  Gerichten,451. 
Pauley  v.  Steam  Gauge  &  Lantern  Co.,84. 
Panlmler  v   Erie  R.  Co.,  205,  .542,  544. 
Pawletu.  Rutland,  etc.,R.  Co.,  214,  215. 
Paxon  V.  Sweat,  310. 
Payne  v.  Chicago  &  A.  R.  Co.,  507,  520. 
Payne  v.  Hal.siead,  527. 
Payne  v.  Humeston  &  S.  R.  Co.,  515. 
Payne  v.  Irvin,  107. 
Payne  w.  Rogers,  102, 105. 
Peachy  V    Rowland,  214,  221. 
Pearson  v.  Cox,  26,  222. 
Pearson  v.  City  of  Duluth,  303. 
Pearson  v.  Milwaukee,  etc.,  R.  Co.,  112. 
Pearson  v.  Skelton,  603,  604. 
Peckv.  nntchinson,  423. 
Peck  V.  .New  York,  224. 
Peck  ».  New  York,  etc.,  R.  Co.,  512. 
Peck  V.  Weeks,  346. 
Pedley  v.  Davis,  455. 
Peer  v.  Eyan,  531. 


Peek  V.  North  Staffordshire  Ry.  Co., 343. 
Peet  V.  The  Chicago,  etc.,  Ry.  Co.,  117, 

358. 
Pell  V.  Relnhart,  107. 
Pelton  V.  Rensselaer,  etc.,  R.  Co.,  341. 
Pendergast  v.  Town  of  Clinton,  137. 
Penderson  v.  Seattle  C.  St.  Ry.  Co.,  485. 
Penhallow  v.  Mersey  Docks,  300. 
Penlston  v.  Chicago,  etc.,  R.  Co.,  395. 
Penning  v.  First  Div.  St.  Paul,  etc.,  R. 

Co.,  340. 
Pennington  v.  W.  U.  Tel.  Co.,  595. 
Pennington  v.  Yell,  427,  434. 
Pennsylvania  R.  Co.  v.  Adams,  541,  553. 
Pennsylvania  R.  Co.  v.  Aspell,  379. 
Pennsylvania,  etc.,  R.  Co.  v.  Bantom,545. 
Pennsylvania  R.  Co.  v.  Beale,  50,  51, 499. 
Pennsylvania  R.  Co.  v.  Butler,  344. 
Pennsylvania  R.  Co.  v.  Central  R.  Co., 

144. 
Pennsylvania  Co.  v.  Elliott,  371. 
Pennsylvania  Co.  v.  Gallentine,  472. 
Pennsylvania  R.  Co.  v.  Henderson,  384, 

385,  386. 
Pennsylvania  Ry.  Co.  v.  Hinds,  207. 
Pennsylvania,  etc.,  R.  Co.  v.  Hope,  46. 
Penn.sylvania  Co.  v.  Horton,55. 
Pennsylvania  Ry.  Co.  v.  James,  513,  518, 
Pennsylvania  v.  Keane,  554. 
Pennsylvania  R.  Co.  v.  Keller,  539,  541, 

544. 
Pennsylvania  R.  Co.  v.  Kllgore,  379. 
Pennsylvania  R.  Co.  v.  Kerr,  46. 
Pennsylvania,  etc.,  R.  Co.  v.  Lacey,  46. 
Pennsylvania  R.  Co.  v.  Langdon,381,  382. 
Pennsylvania  Co.  v.  l<angendorff,  487. 
Pennsylvania  E.  Co.  v.  Lewis,  520. 
Pennsylvania  v.  Lilly,  553. 
Pennsylvania  Co.  V.  Llndley,  116. 
Pennsylvania  R.  Co.  v.  Mahoney,  515. 
Pennsylvania  Co.  v.  Marion,  394. 
Pennsylvania  R.   Co.  v.  Matthews,  505. 
Pennsylvania  Co.  v.  Newmeyer,  383. 
Pennsylvania  R.  Co.  v.  Peters,  499. 
Pennsylvania  R.  Co.  v.  Price,  250,  3.S5. 
Pennsylvania  R.  Co.  v.  Ralordon,  344. 
Pennsylvania  Ry.  v.  Righter,  390,  46$. 
Pennsylvania  Co.  v.  Roney,  488. 
Pennsylvania  Co.  v.  Roy,  374,  409,  410. 
Pennsylvania  Central  R.  Co.  v.  Schwarz- 

enberger,  366. 
Pennsylvania  Co.  v.  Toomev,  204,  206. 
Pennsylvania  R.  Co.  v.  Vandlver,  204. 
Pennsylvania,  etc.,  R.  Co.  v.  Warner, 485. 
Pennsylvania  R.  Co.tJ.  Welller,  345. 
Pennsylvania, etc.,  R.  Co.  ('.Werner,488. 
Pennsylvania.  Co.  v.  Whitlock,47. 
Pennsylvania  R.  Co.  v.  Zebe,  55. 
Pennsylvania  R.  Co.  v.  Zlnk,  489. 
People  V  Colby,  452. 
People  V.  Cole,  431. 
People  V.  Cunningham,  138, 
People  V.  Harris,  430 
Peoples.  Johnson,  453. 
People  V.  Lee,  4.'>3. 
People  V.  Monroe,  422. 
People  V.  Robinson,  449. 
People  V.  Stocking,  450. 
People  V.  Troy  Steel  &  I.  Co  ,  547. 
People's  Bank  v.  Franklin  Bank,  442. 
Peoria  Bridge  Ass.  v.  Loouils,  595,  596. 
Peoria,  etc..  Canal  Co.  v   Graham.  595. 
Peoria,  etc.,  R.  Co.  v.  Clavberg,  498. 
Peoria,  etc.,  R.  Co.  r.  Duggan,  123. 


TAIU.K    OK    CITATIONS. 


(ur> 


References  nre  to  PapeH. 


Poorin,  etc.,  It.  Co.  v.  Rlltman,  .MM. 
I'eiMia,  etc.,  U.  Co.  f.  Thoiniimm,  374. 
Peoria.  1).  &  K.  Kv.  Co.  r.  Alt-n.  IIH. 
Pt'orla,  1).  A  K.  Ky.  Co.  v.  Unhhs,  117. 
Peonii  &  V.  V.  Uy.  Co.  v.  Htirlon,  U6. 
IVrclvul  V.  Hujfhes,  271. 
:■  rcy  V.  MllliKloii,  .VIS,  :t31. 

reirar.  Cci.lral  I'ac.  U.  Co.,  361. 

.  rez  f.  Uaybaiul,  l(i7. 
Uerliain  f.  (^oncv, -11. 
Porloiiowuki  r.  t'reuinnn,  421. 
Porkius  V.  Kaatoii,  etc.,  K.  (  o..  111. 
Perkins  f.  IiihaliitniitH  of  Kayettu,  33. 
Perkins  r.  l.afayelie,  U'2. 
Perkins  i-.  Mohsinan,  12ti. 
Perkins  v.  N.  V.  C.  K.  Co..  24. 
Perkins  r.  Kullroad  Co..  114.  :;f.o,  386. 
I'erkins  f.  The  Portland,  clc,  R.  Co.,358. 
Perkins  v.  Vauulian,  587. 
Pcrley  r.  Ensl.  U.  Co.,  85. 
Perrin  v.  Wells, 5'.i0. 
Perry  v.  Dubucjue,  ctn.,  R.  Co.,  117. 
Perry  r.  llou^^e  of  Kofujfc,  208. 
Perry  r.  .Souihern  Pac.  11.  Co.,  89. 
I'frry  t'.  The  Cenlriil  U.  Co.,. 53. 
I'KHKV  ON  Tkusts,  a.")!,  257,  2(12,  263. 
I'lTbon  t'.  Leathers,  434. 
Peters  f.  Lawson,  437. 
Peters  v.  Stewart.  113. 
Peterson  v.  Chicago  &  \V.  M.  Ry.  Co.,  55, 

111. 
irle  r.  Columbia  &  G.  R.  Co.,  24,  M4, 

..45. 
Pcllenfter  f.  Town  of  Hamilton,  295. 
Pelttbono  v.  .Smith,  97. 
Pellinglll  f.  KIdcout,  518. 
Peyton  v.  lyondon,  69. 
Peyton  r.  Texas  &  P.  Ry.  Co.,  4S7. 
Pennsylvania,  etc.,  Canal  Co.  v.  Bentley, 

4!»U. 
Pennsylvania,  etc..  Canal  Co.  v.  Grabam, 

5%. 
Pennsylvania  Tel.  Co.  r.  Varnan,474,542. 
Pen.so  V.  Mc(;oriulck,  27.1. 
Pllsler  f.  Central  Pac.  R.  Co.,  3G4. 
Pflster  V.  Wade.  435. 
Phelps  V.  L.  &  N.  \Y.  Ry.  Co.,  .362. 
Phelps  r.  Walt.  252. 

Phlfur  r.  Carolina  Central  Ry.  Co  ,348. 
Philadelphia,  etc..  R.   Co.  v.  Anderson, 

2'.t.  3(H),  ;tT2,  375,  392,  523. 
Phlladtlphin,  etc.,  R.  Co.  v.  Boyer,  24, 

374.474,  .507. 
Philadelphln  &  R.  R.  Co.  r.  City  of  New 

York,  7:!. 
Philadelphia,  etc.,  R.  Co.  v.  Derby,  205. 
I'hlludclphia.etc,  R.  Co.  v.  Harper.  3t>6. 
Philadelphia,  etc.  R.  Co.  v.  ilendrlck- 

bon,  8t),  611,  ao. 
Phlladulptiia.    etc.,    R.    Co.    v.     Hoge- 

land.  5(»'.i,  510. 
Philadelphia,  oUj.,  R.  Co.  v.  Long,  615, 

;'.18,  520. 
Philadelphia,  etc,  R.  Co.    v.    Philadel- 
phia, etc.,  iSteamboat  Co.,  4S0. 
Philadelphia,  etc.,    R.  Co.   f.    Philadel- 
phia. Tow  IJoatCo.,  40. 
Philaldephia,  etc.,  R.  Co.  v.  Schultz,  SO. 
Philadelphia,  etc,  R.  Co.  v.  Spearen,  5U3, 

520. 
Philadelphia,  etc.,  R.  Co.  r.  SUnger,  2. 
Phlladelplila,  B.  &  R.  Co.  v.  Layer,  613. 
Phillips  f.  Bridge,  431. 
Phillips  V.  Brlgham,  338. 


Phillips  r.  Condon,  59. 

Phillips  V.  De  Wiil.l.  38. 

Phillips  V.   East  Tenn.,  V.  A  O.  Ry.  Co.. 

474. 
I'lillllps  f.  Library  Co..  7?.  73,  «79. 
PhilUppSf.  L.  &  S.  W.  Uy.  Co.,  545,  Ml. 

5mj. 
Phillips  f.  Mo.  Pac.  Ry.  Co..  123. 
I'lillllpsr.  North  Carolina  U.  Co.  Ml. 
Phillips  r.  .Northern  R.  of  N.J.  872. 
Phillips  f.  Pullen,4a7. 
I'lillllps  r.  ICallrond  Co..  3t'>4i.  461. 
I'lillof.  Ill   Cent.  R.  Co.,24ti. 
Phoenix  (May-Pot   Works  v.  PlttRbargh 

&  L.  K.  U.  Co..  XW. 
I'laiiciaiii  f.  London  ft  S,  W.  Ry.  Co.,  335. 
I'lekard  r.  Anderson,  Sivl. 
Plckard  i-.  Smith.  7'.'.  loj,  223,  446,  53S. 
Pickens  v.  Diecker,  214. 
Pickering  v.  JunieN,  445,  447. 
Pickett  f.  Bates.  433. 
Plekiat    f.    Merchant's    Nat,    Bank    of 

.Memphis,  437. 
Plekli.rd  r.  Grand  Junction  Rv.  Co.,  342. 
I'iddlngton  r.  .S.  K.  Ry.  Co.,  »34. 
I'icdmoiii  Mfg.  Co. r.  Columbia,  etc.,  R. 

Co.,  3t;o. 

Pierce  r.  City  of  Bedford,  .300. 

Pierce  f.  Connors.  ."i20.  .W7,  661. 

Pierco  f.  Whitcomb.  2fO. 

Piggol  r.  Eastern  Counties  It.  Co.,  89. 

PIgolt  f.   Llllv,  36. 

Pike  f.  Grank  Trunk  Ry.  Co.,  60. 

I'lllsbury  v.  Moore.  1(6. 

I'Indell  r.  St.  Louis  ft  H.  Ry.  Co.,  S40. 

Pine  Blulf  W.  ft  L.  Co.  r.  Uerriseeaox, 

140. 
I'lnkerton  v.  Woodward.  411,  417. 
I'hikstoii  c.  .'Vrrlnglon,  430. 
Pinney  v.  Hall,  280. 
Piolett  f.  .SlnimerH.  4o,  142,  480. 
Pitcher  t'.  Lake  Shore  A  .M.  8.  Ry.  Co., 

381. 
Plthlnr.  Harris.  438. 
Pitt  r.  Yolden.  418. 
Pittsburgh,  etc.,  R.  Co.  r.  Andrews,  S3, 

378. 
Pllteburgh,  etc.,  R.  Co.  r.  Bennett.  501. 
Pittsburg,  etc.,  R.  Co.   r.  Bonworth.  llu. 
Pittsburgh,  etc.,  R.  Co.  r.  Bingham,  75, 

3u:.. 
PUtsburgh,  etc,  R.  Co.  r.  Cunnlngton, 

113. 

Pittsburg,  etc.,  R.  Co.  r.  Donahue.  306, 

5iHJ. 
Pittsburgh,  etc.,   R.  Co.  r.  Haxcn,  856, 

357. 
Pittsburgh,  etc.,  R.  Co.  v.  Ilollowell,  88<(, 

357. 
Pittsburgh,  etc.,  R.  Co.  r.  Mccnoxg,  SS, 

378. 
Pittsburgh,  etc.,  Co. r.  Jones, 89. 1 4S. 
Pittsburgh,  etc.,  R.  Co.  r.  Mcthrcn.  111. 
Pittsburgh,  etc.,  R.  Co.  v.  Noel.  90. 
Pittsburgh,  etc,  R.  Co.  r.  Pearson, 518, 

520. 
Pltt.-bnrgh.  etc,  R.  Co.  r  Powers,  5«. 
PitiHburgh.  etc.,  R.  Co.  v.  Kohrmao,  487. 
PIUMbufKh,  etc.,  R.Co.  r.  Shield*.  SOO. 
Plltsburgh,  etc.,  Ky.  Co.  r.  Sialcy.  M. 
Pittsburgh,  etc,  R.  R.  Co.  v.  Thompson. 

571. 
IMtlsburgh.  etc.,  R.  Co.  r.  Vlnlngs  Admr., 

518. 


046 


TABLE    OF    CITATIONS. 


Keferences  are  to  Pages. 


Pittsburgh,  etc.,  R.  Co.  v.  Williams,  523, 

5-27. 
I'lUsburgh,  etc.,  R.  Co.  i;.  Wright,  499. 
I'lace  V.  Taylor,  449,  451. 
riaisted  v.  IJoston  Steam  Nav.  Co.,  .337. 
Plant  V.  Pearman,  438. 
Plaquemines  Tropical  Fruit  Co.  v.  IJuck, 

324. 
I'latt  V.  Chicago,  etc.,  Ry.  Co.,  480. 
Platte  &  Denver  C.  &  M.  Co.  v.  Dowell, 

55,  470. 
Plattsmonth  v.  Mitchell,  308. 
Platz  V.  City  of  Cohoes,  40,  480,  507. 
Player  v.  Burlington,  etc.,  Hy.  Co.,  383. 
Playford  v.  U.  K.  Tel.  Co.,  446. 
Plummer  v.  Dill,  77. 
Plummer  v.  Eastern  R.  Co.,  501. 
Plummer  v.  Webb,  548. 
Pluckwell  V.  Wilson,  65. 
Pocock  V.  Redflington,  263. 
Poeppers  v.  Missouri,  etc.,  Ry.  Co.,  4J. 
Poland  V.  Miller,  61. 
Polhans  v.  Atchison,  etc.,  R.  Co.,  87. 
Pollettv.  Long,  46. 
Pollock  V.  Eastern  R.  Co.,  604. 
Pomeroy  v.  Inhabitants  of  Westfleld,  b5. 
Pomfrey  v.    Saratoga   Springs,  306,  315, 

321. 
Pool  V.  Jackson,  318. 
Pool  V.  Southern  Pac.  R.  Co.,  551. 
Poole  V.  Gist,  432,  433. 
Poor  V.  Sears,  107,  506. 
Pope  V.  Kansas  City  Cable  Ry.  Co.,  4(!2. 
Popp  V.  New  York,  etc.,  R.  Co.,  4SS. 
Popplewell  V.  Pierce,  125, 127. 
Porter     v.      Anheuser-Busch    Brewing 

Assoc,  51S. 
Porter  v.  Durham,  93. 
Porter  v.  Halght,  450. 
Porter  i>.  Hannibal,  etc.,  R.  Co..  596. 
Porter «;.  Hildebrand,  364. 
Porter  r.  New  York,  etc.,  R.  Co.,  384. 
Porter  v.  Pockham,  434. 
Porter  v.  Railroad  Co.,  204,  207. 
Porter  Co.  Com.  ».  Dombke,  318. 
Portman  v.  City  of  Decorah,  460. 
Post  V.  Boston,  305. 
Pcstal  Telegraph  Co.  v.  Zopfl,  491. 
Potter  V.  C.  R.  I.  &  P.  Co..  246. 
Potter  V.  Met.  Ry.  Co.,  546,  602. 
Potter  V.  Moran,  488. 
Potter  v.  New  York,  C.  &  H.  R.  R.  Co., 

105. 
Potter  V.  Parsons,  437. 
Potter  V.  The  Majestic,  365. 
Potter  v.  Warner,  421,  426,466,  492. 
Pottner  v.  Minneapolis,  318. 
Potts  V.  Dutton,  438. 
PouchertJ.  New  York  Cent.  R.  R.  Co.,  386. 
Powell  f.  Fall,  84. 
Powell  V.  Mills,  339. 
Powell  V.  Myers,  363. 
Powell  V.  Powell,  547. 
Powell  V.  Salisbury,  109. 
Power  V.  First  Nat.  Bank,  443. 
Power  V.  Kent,  433. 
I'owers  V.  Bo.ston  Gas  Light  Co.,  291. 
Powers  V.  Chicago,  etc.,  Ry.  Co.,  513. 
I'owers  V.  Council  Bluff.  303. 
Powers  w.  Davenport,  338. 
Powers  V.  Harlow,  77,  278,  519. 
Powers  V.  Kindt,  1.33. 
Powers  r.  Thayer  Lumber  Co.,  .32. 
Pray  v.  Mayor,  etc.,  137. 


Pray  v.  Omaha  St.  Ry.  Co.,  377. 

Prentiss  v.  Boston,  292. 

Prentiss  v.  Wood,  105. 

Prescott  &  A.  C.  Ry.  Co.  v.  Ress,  463. 

Prescott  V.  Knowles,  132. 

Pressyv.  Wlrth,  131. 

Preston  v.  Hill,  437. 

Preston  v.  Prather,  59,  60. 

Prestwick  v.  Poley,  429,  436. 

Pretty  v.  Bickmore,  102. 

Prewltt  V.  Eddy,  479,  482. 

Prldeaux  v.  Mineral  Point,  55,  472,  474, 

507. 
Price  V.  Railroad  Co.,  550. 
Price  V.  Richmond  &  D.  R.  Co.,  542. 
Prince  r.  International  &  G.  N.  K.  Co., 

385. 
Prlncetown  v.  Gieske,  305. 
Printup  V.  Patton,  604. 
Prior  V.  Kiso,  435. 
Pritchard  v.  Keefer,  206. 
Proctor  V.  Hannibal,  etc.,  R.  Co.,  248. 
Proctor  I'.  Harris,  102. 
Proeger  v.  Bristol  &  Ex.  Ry.  Co.,  399. 
Propsom  V.  Leathern,  597. 
Prosser  v.  Coots,  455. 
Pryor  v.  Louisville  &  N.  R.  Co.,  35. 
Puckwell  t'.  Wilson,  63,  271. 
Pullman  Palace  Car  Co.  v.  Barker,  42, 

409. 
Pullman  Palace  Car  Co.  v.  Bluhon,  39, 

4'.)3. 
Pullman  Palace  Car  Co.  v.  Freudensteln, 

402. 
Pullman  Palace  Car  Co.  v.  Gardner,  406. 
Pullman  Palace  Car  Co.  v.  Gavin,  404. 
Pullman  Palace  Car  Co.  v.  Gaylord,  401, 

407. 
Pulling  V.  Gt.  Eastern  Ry.  Co.,  547. 
Pullman  Palace  Car  Co.  v.  Lowe,  403. 
Pullman  Pahice  Car  Co.  v.  Martin,  404. 
Pullman  Palace  Car  Co.  v.  Mat  thews,  40.5. 
Pullman  Palace  Car  Co.  v.  Pollock,  404. 
Pullman  Palace  Car  Co.  v.  Smith,  401, 

402,  405. 
Pullman  Palace  Car  Co.  v.  Taylor, 408. 
Pulpit  V.  Matthews,  109. 
Pundmat  v.  St.  Charles  County,  145. 
Purcellv.  English,  106. 
Purcell  V.  St.  Paul  City  Ry.  Co.,  39,44. 
Purdy  V.  Lynch,  263. 
Purdy  V.  New  York,  etc.,  R.  Co.,  506. 
Purl  v.  St.   Louis,  etc.,  Ry.  Co.,  502. 
Purtell  V.  Jordan,  489. 
Purvis  v.  Ci>louian,414. 
Puryear  v.  Thompson,  206,  209.  212. 
Putnam  V.  N.  Y.  C.  &  H.  R.  R.  Co.,  32. 
Putnam  v.  Van  Buren,  435. 
Putnam  I'.  Wejrg,  128. 
Pye  V.  City  of  Mankato,  95. 
I'ye  V.  Faxon,  215. 
Pvm  V.  Gt.   Northern  Ry.  Co.,  544,  546, 

671. 
Pyne  v.  C.  B.  &  Q.  R.  Co..  247. 


Q. 


Quackenbush  v.  Wisconsin  &  M.  R.  Co., 

119,  123. 
Quarman  v.  Burnett,  210,213,  223. 
Quebec  Cent.  Ry.  Co.  v.  Lortle,  485. 
Quested  v.  Newburyport,  etc..  Horse  R. 

Co.,  373. 


lAI'.I.i;    t  H      (   n  A  I  in.N; 


i . 


Ki'fen'iKM's  are  to  ruir*-N. 


tjiull  r.  s.  Y.  r.  *  II.  It.  K.  Co..  :r.,;f.i. 
yulmby  r.  Iloston  &  .M.  K.  Co.,:jts"i. 
t^ulinby  r.  Wooilburv,  I-.*'.). 
c)iiln  f.  Moore,  -JS*;,  Mb,  .'kVJ. 
'  Jiilnry  t'.  Jones,  (i,  7,  U. 
(.HiincV,  11.  ICv.  &  C.  Co.  V.  Gruso,  iDi. 
(.nilnliin  f.  City  of  UlK'a,*21. 
ijiilmi  f.  Illinois  Cent.  It.  Co.,  37*!. 
(.•iiinn  t'.  Lloyd,  iXt. 
iMiinu  f.  I'crhnin,  107. 
,'iiinn  V.  I'owor,  201,. W4. 
\Hiinn  V.  Soulb  Caroliuu  Uy.  Co.,37S,  j>9. 


R. 


Kiihe  r.  Sommcrbeek,  472. 
Kiibcn  f.  Centrnl  la.  Ry.  Co.,  380. 
UiuUl'v  t'.  London  &  North  Western  Uv. 

Co..'4.VJ,40>. 
UaKiin  V.  Aiken,  339. 
Itugan  V.  liiitfct,  3:t'.*. 
Kapby  v.  llcwltl,  2H. 
Itailroad  Co.  v.  Aapell,  54. 
Itailroad  (;o.  r.  Hoyer,  6W. 
Kail  road  Co.  r.  Code,  '247. 
Kallroad  C<i.  r.  Cunnln^lon,  295. 
Kallroad  Co.  f.  Curran,  38ii. 
Unilroad  Co.  r.  Kd\vard«,  247. 
lUiilroad  Co.  r.  Fort,  210. 
UailroadCo.  c.  Hawk,  52. 
Kallroad  Co.  r.  Hawkins,  353. 
Kallroad  Co.  v.  Iledgcr,  35:5 
Kallroad  Co.  v.  Hurbock,  515. 
Kallroad  Co.  v.  Houston,  50,  498. 
Kallroad  Co.  v.  Howard,  119. 
Kallroad  Co.  t\  Ingrain,  247. 
Kallroad  Co.  v.  Jones,  2,  247,  382,  38:5. 
Kallroad  Co.  v.  Ki-llv,  27. 
Kallroad  Co.  v.  Kerrlson,  299. 
Kallroad  Co.  v.  Lea,  247. 
Itailroad  Co.  r.  Lockwood,  24,  345,  .385, 

;5.si. 
Railroad  Co.  v.  >rannfacturlng  Co.,  346. 
Railroad  Co.  v.  Mltcliell,  587. 
Itailroad  I'.  Norton,  4tji;. 
Railroad  Co.  r.  Reeves,  47,  338. 
Itailroad  Co.  v.  Rutherford,  378. 
Kallroad  Co.  v.  St.  John  Ix>ng,  423. 
Itiillroad  Co.  v.  Skinner.  111. 
Kallroad  Co.  v.  Stout,  50,  78.  288,  519. 
Kallroad  Co.  r.  Walrath,  409,410. 
Kainsr.  St.  Lonis,  Iron  Mountain,  etc., 

K.  Co.,54.SM3. 
Kiilsin  r.  Mltclii-ll,  599. 
Kajuow.ski  v.  Detroit,  etc.,  R.  Co.,  547. 
Kaleigh  K.  Co.  c.  Wicker,  95. 
Rainely  f.  Lelnnd,41fi. 
Itamsdell  v.  New  York  &  N.  E.  It.  Co., 

5:i9. 
Ranisden  v.  Boston,  etc.,  R.  Co.,  206. 
Kanisey  v.  Holmes,  etc.,  Co.,  592. 
Ramsey  t'.  Rui^liville,  316. 
Itiiiice's  Case,  330. 
Kandalr.  Newson,  61,393. 
Itandallf.  Cockran,5t<8. 
Randall  v.  N.  W.  T.  Co.,  472. 
Randall  r.  Itaper,  602. 
Itandolpb  r.  «)'Klorden,  65. 
Rankin  »•.  Inewcrsen.  105. 
Rankin  v.  Schaffer,  I'M. 
Ransom  v.  (Chicago,  etc.  Ry.  Co..  504. 
Raneon  r.  New  York  &  Erie  R.  Co.,  596. 


Rantoul  r.  .\uw   Vork    ('••■iirn-    •■<■■      i; 

Co.,  34S. 
Itaiilio  ('.  Mooro,  142. 
Rnpnon  f.  <'ul)ltt,  '^i-!,  Wl 
ItHicllir  ('.  Knird,  4:'.4. 
Itatte  r.  Daw  Hon.  7«''. 
Kay  r.  Kiirbank  A  .hmcH,  '.'i'.». 
Ray  r.  MancheHtcr,  :um'). 
Ravduru  e-.  Knlgbl,4r>. 
Kaymond  c.  I(iIIi'h,449. 
Raymond  i-.  Ittirllngton,  ctc.,R.  Co., 472. 
Raymond  f.  llodE^on,  l:t2. 
Ray  nor  r.  MltrbeJI,  2<Ki. 
Ra'wBon  r.  rcnnsylvanla  R.  Co.,  363. 
Itea  f.  Simmons,  6o. 
Read  f.  Edwards,  125,  I'iS. 
Read  v.  French,  4:i5. 
Head  V.  Great  Kaslirn  Ry.  Co.,  .%42. 
Read  v.  Mclu.last,  4i'>.  50. 
Read  f.  Spauldlnif.  337. 
Readdy  r.  liurouKb  of  Shannon.  599. 
Readbeadf.  .Mid.  R.  y.  Co.,  61,  273,5'". 

3tW,  452. 
Reading,  etc  ,  R.  Co.  v.  Ijituhan.  88. 
Ktadlng,  etc..  It.  Co.  r.  Kilehlu,  50,  51. 
Keadman  r.  Conwav,  103. 
K.ary  r.  Lr.ulHVllle.'etc.,  Ry.  Co.,S*). 
Keber  v.  Itond,  3h;>. 
Ro  Rlauvelf.i  KsUite,  264. 
Receivers,   Houston  &  T.  C.  Ry.  Co.  r. 

Stewart,  205. 
Reddlngton    r.    Philadelphia    Traction 

Co.,  376. 
Redlgan  v.  Roston  A  M    It.  Co.,  396. 
Kedmond  f.  Maton,  4.VJ. 
Redner  v.  LehlKb  *  H.  Ry.  Co.,  39r.. 
Kcdpath  f.  Tel.  Co.,5'.i4. 
Keece  f.  Rigbv,  4:8. 
Keed  f.  He  I  last,  13,'i. 
Keed  r.  Detroit,  319. 
Reed  r.  Edwards,  110. 
Keed  Lumber  Co.  r.  I.«wls,  SOL 
Reed  f.  .Madison,  3ii7. 
Reed  v.  Northeastern  R.  Co.,  550. 
Iteedle  r.  L.   A  N.  W.  Ry.  Co.,  70,  SI, 

224. 
Rees  r.  Willlamfl,  439. 
Reeve  r.  Palmer,  4:i8. 
Reeves  f.  Delaware,  etc.,  R.  Co.,  478. 
Reeves  v.  Suite  Rank  of  Ohio,  443. 
Iteg.  r.  The  Judge  of  the  CUy  of  Ixindon 

Court,  242. 
Reg.  r.  Treasury,  446. 
Reg.  f.  United  Telegraph  Co.,  139. 
Renbergf.  Mayor,  etc., of  Now  York, 320. 
Kehdon  f.  Weiley.  2.VH. 
Rehrey  r.  Newburgh,  :«)7. 
Itclllv  f.  Hannibal  *  St.  J.  It.  Co.^il. 
Relnderf.  Ullck  A  IMiilllpB  Coal  Co.,.VJS. 
Relper  v.  Nicholas,  47. 
Rembcrtf.  South  Carolina  Ry.  Co.,  14.1. 
Rels  f.  Stratton,  1J5. 
Remele  t'.  Donahue,  13.3. 
Itenneker  r.  South  Carolina  Ky.  Co..  .ttt. 
Renner  f.  C'anflcid,  42. 
Reno  f.  Houan,  ;M4. 
Repp  f.  Wile.-*,  4.37. 
Retan  f.  Lake  Shore  A  M.  S.  It.  Co..  51 
Rex  f.  CroHH.  138. 
Re.x  f.  KerriHon,  299. 
Rex  f.  I'adlev,  101. 
Kex  r.  RiiHKoll,  i:w. 
Ilex  r.  Scriveners'  Co.,  448. 
Rex  f.  Tew,  438. 


G48 


TABLE    OF    CITATIONS. 


References  are  to  Pages. 


Reynolds  v.  Graves,  423. 

Reynolds  v.  Hanrahan,  205. 

Reynolds  v.  Hussey,  2S:5. 

Ifevnolds  v.  Texas  &  P.  Ry.  Co.,  394, 

Reinhold  v.  Alberti,  437. 

Rhines  v.  Evans,  429. 

Rliines  v.  Town  of  Royalton,  137. 

Rhliig  V.  Broadway  &  S.  A.  Rv.  Co.,  60. 

Rhodes  V.  Railroad  Co.,  120,  353. 

Ribble  v.  Starrat,  489. 

Elcard  v.  N.  Pa.  R.  Co.,  249. 

Kice  I'.  Bnxendale,  356. 

Klce  V.  City  of  Flint,  95. 

Rice  V.  Des  Moines,  39. 

Bice  V.  Evansville,  301,  304. 

Rice  V.  Nixon,  59. 

Rich  V.  Pierpont,  421. 

Richards  v.  Chicago,  St.  P.  &  K.  R.  Co., 

51. 
Richards  «.  Gt.  E.  Rv.  Co.,400. 
Richards  v.  L.  B.  &  S,  C.  Rv.  Co.,  362, 

363. 
Richards  v.  New  Hampshire  Ins.  Co. ,324. 
Richards  v.  Oshkosh,  315,  321. 
Richardson  v.  G.  East,  Ry,  Co.,  395. 
Richardson  v.  Mellish,  601. 
Richardson  v.  Met.  Ry.  Co.,  400. 
Richardson  1-.  Milburn,109. 
Richardson  v.  N.  E.  Ry.  Co.,  342. 
Richardson  v.  N.  Y.  C.R.  Co.,  555. 
Richardson  t'.  R.  R.  Co.,  8. 
Richardson  v.  Richardson,  434. 
Richardson  v.  Talbot,  434. 
Richardson  v.  Van  Ness,  212. 
Richardson  v.  Verm.  Cent.  R.  Co.,  6. 
Richart  v.  Scoit,  7,  8,  10. 
Richmond  v.  Smith,  413. 
Richmond  v.  Chicago  &  W.  M.  Ry.  Co., 

543,  547. 
Richmond  v.  Quincy,  etc.,    Ry.   Co.,  54, 

379. 
Richmond  City  Ry.  Co.  v.  Scott,  394. 
Richmond,  etc.,  R.  Co.  v.  Didzoneit,  462. 
Riotimond,  etc.,  R.  Co.  v.  Farmer,  485. 
Rictimoud,  etc.,R.  Co.  v.  Freeman,  537, 

544. 
Richmond,  etc.,  R.  Co.  v.  Hammond,551. 
Richmond,  etc.,  R.  Co.  v.  Howard.  5. 
RIchmoiKi,  etc.,  R.  Co.  v.  Johnson,  .541. 
Richmond,  etc.,  R.  Co.  v.  Medley,  89. 
Richmond,  etc.,  R.  Co.  v.  Moffett,  35. 
Richmond,  etc.,  R.  Co.  v.  Morris, 379. 
Rlcliraond,  etc.,  R.  Co.    v,  Pickleslmer, 

375,  383,  466. 
Richmond,  etc.,  R.  Co.  v.  Scott,  53,  378. 
Richmond,  etc.,  R.  Co.  v.  White,  47,338. 
Riclimond,  etc.,  R.  Co.  v.  Yeamans,  462. 
Rlchter?;.  Pa.  Co.,  250. 
Ricker  v.  Freeman,  38. 
Rickets  V  East  India  Docks  Ry.  Co.,  110. 
Rlckf^tts  V.  Chef-apeake  &  O.  Ry.  Co., 372. 
]{iddle  iJ.  Hoffman,  433. 
Riddle  V.  Poorraan,  427. 
Riddle  V.  Proprietors  of  Locks  &  Canals, 

1.3.5. 
Rldcnhonrv.  Kansas  City  Cable  Ry.  Co., 

513,596. 
Rlepe  V.  Elting,  65. 
Rieponw.  Bittel,  595. 
KiKby  V.  Hewitt,  507,  591. 
RlKony  ».  County  of  Schuylkill,  146. 
Riley  r.  Llssner,  79. 
Riley  V.  Suit  Lake  R.  T.  Co.,  515. 
Riley  V.  Simpson,  102. 


Riley  V.  Warden,  229. 

Ring  I'.  Cohoes,  34. 

Ringelstein  v.  San  Antonio,  316. 

Kio  Grande  Ry.  Co.  v.  Cross,  372. 

Risley  v.  Fellows,  435. 

Ruche  V.  Waller,  212. 

Ritz  V.  City  of  Austin, 540. 

Rixford  v.  Smith,  338,  339. 

Koach  V.  Western  &  A.  R.  Co.,  509. 

Rotjerts  V.  Drehmer,  592. 

Itoberts  V.  Johnson,  528. 

Rol)erts  v.  Nelson,  437. 

Roberts  v.  Quincy,  etc., R.  Co.,  113. 

Roberts  V.  Richniond,  etc.,  R.  Co. ,122. 

Roberts  v.  Stuyvesant  Safe  Deposit  Co., 

60. 
Robbins  v.  Chicago,  218,  219,  275,  292. 
Robbins  v.  Fitchburg  R.  Co.,  505. 
Robbins  v.  Jones,  102,  457. 
Robertson  v.  Amazon  Tug  Co.,  62. 
Robertson  v.  N.  Y.,  etc.,  R.  Co.,  382. 
Robertson  v.  Wooley,  288. 
Robinson  v.  Brennan,  454. 
Robinson  v.  Chamberlain, 449. 
Robinson  v.  Cone,  515,  516. 
Robinson  v.  G.  W.  Ry.  Co.,  347. 
Robinson  v.  Gell,  448. 
Rohinson  v.  Hall,  328. 
Robinson   v.    Merchants    Despatch  Co., 

346. 
Robinson  v.  Merino,  127. 
Robinson  v.  New  York,  etc.,  R.  Co.,  374, 

508,  527. 
Robinson  v.  Oregon,  etc.,  Ry.  Co.,  78. 
Robinson  v.  Robinson,  264. 
Robinson  v.  Simpson,  524    601 
Robinson  v.  Smith,  324,  325,  326. 
Robinson  v.  St.  I^ouis,  etc.,  Ry.  Co.,  121. 
Robinson  v.  Webb,  217. 
Robinson  v.  Western  Pac.  R.  Co.,  478. 
Robsoa  V.  N.  E.  Ry.  Co,,  388,396,  397,399. 
Rocheford  v.  Attlei^iorough.319. 
Rockford,  etc.,  R.  Co.  v.  Byam,  50. 
Rockford,  etc.,  R.  Co.  v.  Delaney,  519, 

552 
Rockford,  etc.,  R.  Co.  v.  Rogers,  89. 
Rock  Island,  etc.,  R.  Co.  v.  Fairclough, 

366. 
Rockwell  V.  Proctor,  412. 
Roderick  v.  Railroad  Co.,  362. 
Roe  V.  City  of  Kansas,  306. 
Roe  V.  Crimmins,  141. 
Roederv.  Ormsby,  545. 
Roemer  v.  Striker,  215. 
Rodgers  v.  R.  R.  Co.,  48,  337. 
Rogers  v.  Chicago,  etc.,  R.  Co.,  113. 
Rogers  V.  McDowell,  455, 
Rogers  V.  Overton.  472. 
Rogers  V.  Rhymney  Ry.  Co.,  391. 
Rogers  V.  Shirley,  320. 
Rogers  v.  Sinshelmer,  7. 
Rogers  v.  Taylor,  9,  68. 
RoL'ahn  17.  Moore  Mfg.  &  F.  Co.,  204. 
Rolirbough  v.  Harber  Co.,  136. 
Roland  V.  Miiri)hy,  6. 
Rome  V.  Dodd,  463. 
Rmnpillon  v.  Abbott,  38. 
Kooney  v.  Sewall  &  D.  C.  Co.,  49*. 
Roope  V.  D'Anigdor,  549. 
Root  V.  New  York  C.  S.  C.  Co.,  405,  407. 
RoKER  ON  Railways,  346,  351,  366. 
Rose  V.  N.  E.  Ry.  Co.,  388.  396,  399. 
Rose  V.  D.  V.  R.  Co.,  246. 
Rose  V.  Stephens,  etc.,  Transp.  Co.,  632. 


TAHLK    Ol'    (  IIATIONS. 


r,49 


Keft'reucPH  ure  to  ruKos. 


Uosonborp  r.  Dnrfroe,  .''13. 

KuHcnkranz  r.  Lliuli-ll  Ky.  Co.,  B18. 

KoMenlliiil  ('.  Dnvenporl,  452. 

K088  r.  Caiii|>ljcll,455. 

Kosar.  (;ily  ot  Clinton,  303. 

K08S  r.  Duvenport,  314,  479. 

Ito.ss  v.  FeUiloii,  101. 

U088  r.  KtiiiHns  City,  697. 

K088  t'.  Mellln,  417. 

Ko88r.  Minn.  K.  Co.,.'W«i. 

Uostf.  Missouri  I'.  l£y.  Co.,  87. 

Ito8wull  I?.  I'rior,  101. 

Kolh  f.  Itailroad  Co.,  340,  387. 

Kothenbergur   v.    Nortttwestern    C.    M. 

Co.,  494. 
Roublon  v.  Clark,  77. 
KoundBf.  Delaware,  etc.,  U.  Co.,  203,200. 
Uourku  V.  While  M.  C.  Co.,  211. 
liowbolliani  f.  Wlleon,  9. 
Kiiwe  V.  Lent,  423. 
Kowe  f.  SI.  I'aiil,  .M.  &  M.  11.  Co.,  03. 
Kowell  r.  Kallroad  Coinnanv,  90. 
Uowell  V.  SlainforU  St.  li.  Co.,  479. 
Kowell  t:  Williams,  696. 
Kowen  f.  New  York,  etc.,  R.  Co.,  463. 
Kowley  r.  I..  &  N.  W.  Ky.  Co..  645,  54(5. 
Kozcller.  City  ot  Anderson,  3U1,  3o4. 
Kozelle  v.  Hannibal,  etc.,  K.  Co.,  115,  118. 
Kubenstcin  v.  Crulkshanks,  415,  41fj. 
Uuck  r.  WlUlam-s,  299,  30.i,  308, 
Uuckor  f.  MlsHouri,  etc.,  11.  Co.,  3^2. 
Kuckcr  r.  Smoke,  698. 
Ruddock  V.  Lowe,  422. 
Under  r.  I'urdy,  599. 
Kudge  r.  Gum  mow,  265. 
Kunipio  r.  Oregon,  etc.,  Ry.  606. 
Hnnirlll  r.  Town  of  Uelalleld,  136. 
UuHiRey  V.  N.  K.  Uv.  Co.,  302. 

RUS.SELL  ON  CUIMES.  423. 

Kaesell  v.  Columbia,  141. 

HusKell  t'.  Kagan,  412. 

RusBell  V.  Glllesi'ie,  454. 

RusRcU  V.  Hanlev,  110. 

Russell  V.  Koehler,  00. 

Russell  V.  I'almer,  438. 

Russell  r.  Railroad  Co.,  387. 

Kussell  r.  .Stewart,  438. 

Russell  V.  Sunbiirv,  547. 

Russell  V.  Till<>tso"n,  48.5. 

Kussell  r.  Tomllnyon,  13.3. 

Rutherford  v.  \  lllage  of  Holly,  94. 

Ryan  v.  Cumberland  Valley  R.  Co.,  387. 

Ryan  r.  Gilmer,  627,  529. 

Ryan  v.  Gross,  86. 

Ryan  r.  Lewis,  .5'.»0. 

Ryan  v.  Loulhvillo,  etc.,  Ry.  Co.,  472. 

Ryan  r.  .Mlll.r,  32. 

Uvan  f.  N.  V.,  etc.,  R.  Co.,  46,47. 

Ryan  t>.  Thompson,   73. 

Ryan  v.  Wilson,  102,  106,457. 

Rychllcko  v.  City  ot  St.  Louis,  303. 

Ryckman  r.  Glllin,  0. 

Ryder  v.  White,  282. 


s. 


Sabine  &  E.  T.  Ry.  Co.  r.  Hauks,  462. 
Sadler  r.  Henlock,  214,  220. 
Safe  Deposit  Co.  v.  Pollock,  60. 
Sager  f.  The  Portsmouth,  etc.,  R.  Co.,  346. 
Sahlgaard  v   St.  Paul  City  Ry.  Co.,  376. 
Saia  f.  Chlcugo,  etc.,  Ry.  Co.,  502. 


Saldana  f.  (ialvcRton,  etc,  Ry.  Co.,(yBft. 
.>^aleiii  Itedlonl  .Mono  t.'o.  v.  (I'llrlon,  ttflL 
.'^nllKbury  v.  Hlrrhenrode,  4S.  :".oS. 
SaliiKJii  f.  Delaware,  etc..  R   C;u.,  W. 
Salter  v.  Ctua.  cte.,  I(.  Co.,  600. 
Saltmarsh  t'.  Kiirreit,  2*U. 
Samiiilns  t-.  Welheliii,  auu. 
SamiiiH  V.  Stewart,. '130. 
SamuelH  r.  LouihVllle  A  S.  R.  Co..  339. 
San  Antonio  &  A.  P.  Ry.  Co.  v.  liennott. 

.'i40,  515. 
San  Antonio  St.  Ity.  Co.  f.  Calllonettc, 

515. 
San   Antonio  &  A.  P.  Ry.  Co.  v.  Corloy. 

f,l»6. 
San  .Antonio  &  A.  P.  Ky.  Co.  v.  Knocndl, 

117. 
San   Antonio    &  A.  P.  Ry.  Co.  r.  iMttg, 

373,643,  5.V4. 
San    Antonio    *   A.   P.   Ry.  Co.   r.  Mc- 
Donald, 487. 
San  Antonio  &  A.  P.  Ry.  Co.  r.  Oakca, 

88. 
San  Antonio  St,  Ry.  Co.  r.  Vaughn,  603, 

61H. 

San  Antonio  St.  Ry.  Co.  r.  Mcchler,  620. 

Sanders  c.  Darling]  449. 

Sanders  r.  Kelster,  470. 

Sanders  f    ."^tuart,  .5i»3 

Sanderson  f.  h  ra/,ier,470, 478,  627. 

Sanderson  i-.  Ilollaml,  426. 

Sanderson  r    Sanderson,  547. 

Sandford  r.  KIghth  Avenue  Ry.  Co.,  20S. 

Sanford  v.  Augusta,  699. 

Sangamon,  etc.,   R.    Co.  r.  Henry,  333, 

351} . 
Santcri'.  New  York,  etc..  R.  Co  ,  646 
Sapplngton  r    Missouri  Pac.  R.  Co  ,87. 
.Sarch  f.  iSlaekliurn,  131 
Sargent  r.  M.  Louis.*  8    Ry    Co  ,896. 
Sargent  r.  Town  Gilford,  137. 
Sas^een  c.  Clark,  412,  414. 
Satlier  r.  ChUvago,  etc.,  Ky.  Co.,  113. 
Satterlleld  r.  Kowaii.  98. 
Salterleo  f.  Groot,  2iHi. 
Saulsbury  v.  Ithaca.  3ip8,  319. 
Sannders  r.  (iun  Plains,  *j7. 
Sauler  r.  New  York,  etc,  K.  Co  ,640. 
Savannah  f.  Cleary,  306. 
Savannah  f.  S^)ear8,  304. 
Savannah  r.  W  lUon,  l:!,s. 
Savannah,  F.,  etc  ,  Ky.  Co.  r.  Mclntoah, 

31  ;t). 
Savannah,  F.  A  W.  Ry.  Co.  v.  Prltchnrd, 

3<il. 
Savannah,  F.  A  W.  R.  Co.  r.  W«tt»,  379. 
Savannah  A  R.  Co.  v.  MadorK,5l. 
Savannah  A  \V.   It.  Co.  c.  Phillip*,  216. 
Savingo  Kaiik  r.  Copenton,  332. 
Savings  Hank  v.  Ward,  12,  430. 
Sawyer  f.  Cor.se,  4.'il. 
Sawyer  r.  Hannibal,  etc,  R.  Co.,  527. 
Sawyer  r.  McCiilllcuddy,  lu7. 
Sawyer  v.  Marlins,  214. 
Sawyer  r.  Newburvport,  306. 
.'<aw>er  f.   Norlhfleld,  136. 
San-yer  v.  Oakman,  481. 
Saw\er  f.  Saner,  4<S 
Scaling  r.  I'ulliiian  I'alneo  Car  Co.,  401 
Kcadiorough  r.  Alubamn  U.  Ky.  it*. tit. 
Sehaclierl  r.  St.  Paul  City  Ry.  Co  .  37«. 
Schacfert   v.  The  Chicago,  etc.,  Ky.  Co., 

50. 
Schacllcr  r.  Tp.  of  JackMD,  37.  136. 


650 


TABLK    OF    CITATIOXS. 


Refereuces  are  to  Pages. 


Schaefler  v.  City  of  Sandusky,  316. 

Schaller  v.  Connors,  125. 

Schaiib  V.  Hannibal  &  St.  J.  R.  Co..  542. 

Scheepers  v.  Union  Depot  K.  Co.,  529. 

Scliefferi'.  Corsou,413. 

Schefferv.  Railroad  Co.,  36,45. 

Sciieriz  v.  Indianapolis,  etc.,Ky.  Co.,  lis. 

Scliermer  v.  Neurath,  58. 

Sciiexnaydre  v.  Texas  &  P.  Ry.  Co.,  502. 

Schierliold  v.  North,  etc.,  R.  Co.,  514. 

Schindler  v.  Milwaukee,   etc.,  Ry.   Co., 

465. 
Schimpf  V.  Sliter,  65. 
Sciilenks  v.  Central  Pass.  Ry.  Co.,  514. 
Sclilereth  v.  Mo.  P.  R.  Co.,  554. 
Schlichting  v.  Wintgen,  550. 
Schlitz  V.  Pabst  Brewing    Co.,  496. 
Sclimeer  I'.  Gas  Ligiit  Co.,  290. 
Sclimid  V.  Huinplirey,  40,  481. 
Sclimidt  V.  Bauer,  280. 
Schmidt  v.  Chicago,  etc.,  R.  Co.,  55,  540. 
Schmidt  v.  Deegan,  540. 
Schmidt  V.  Kansas  City  Distilling  Co.,  78, 

519. 
Schmidt  v.  Philadelphia  &  R.  R.  Co.,  506. 
Schmitz  V.  St.  Louis,  etc.,  Ry.  Co.,  520, 

596. 
Schnatzt).  Philadelphia  &  R.  R.  Co.,  541. 
Schneider  v.  Mo.  P.  R.  Co  ,  93. 
Schneir  v.  C,  R.  I.  &  P.  R.  Co.,  528. 
Schnur  v.  Citizens  Traction  Co.,  513. 
Schoecraft  v.  liailey,  411. 
Schoenfeld  v.  Milwaukee  City  Ry.  Co., 

479. 
Sclioettger  v.  Wilson,  450. 
Schofleld  V.  Chicago,  etc.,  Ry.  Co.,  50, 

498,  502. 
School  District  of  Erie  v.  Fness,217. 
Schraeder  v.  C.K.I.  &  P.  R.  Co.,  246. 
Schriver  v.  Sioux  City,  etc.,  R.  Co.,  344. 
Schroeder  v.  Crawford,  41. 
Schroeder  v.  Faires,  126. 
Schroth  V.  City  of  Prescott,  50. 
Schroyer  v.  Lynch,  450. 
Schrubbe  v.  Connell,  206,  208. 
Schubert  v.  Clark,  12. 
Schulte  V.  New  Orleans,  etc.,  R.  Co.,  503. 
Schultzzi.  Beyers,  8. 
Schullz  V.  Moon,  531. 
SchuUz  V.  Pacific  R.  Co.,  248. 
Schulze-Berge  v.  The  Guildhall,  345. 
Schuyler  v.  Fltchburg  R.  Co.,  116, 117. 
Schwartz  v.  Daegling,  8. 
St.  Clair  V.  Missouri  Pac.  Ry.  Co.,  471. 
St.  Clair  St.  Ry   Co.  v.  Eadie,  515. 
Scott  V.  Central  R.  Co.,  537. 
Scott  V.  Groves,  128,  284. 
Scott  V.  Hale,  85. 
Scott  V.  Harrison,  429. 
Scott  V.  Hunter,  48. 
Scofleld  V.  Lake  Shore,  etc.,  R.  Co.,  339. 
Scott  V.  L.  &  St.  K.  Docks  Co.,  529. 
Scott  V,  Liverpool  Dock  Co.,  71,  275. 
Scott  V.  London  Dock  Co.,  212,  267,  522, 

532. 
Scott  V.  Manchester,  300. 
Scott  V.  Montgomery,  596. 
Scott  V.  National  Bank  of  Chester  Val- 
ley, 440. 
Scott  V.  Oregon  Ry.  Co.  &  Nav.  Co.,  475. 
.Scott  V.  Seller,  436. 
Scott  V.  Shepherd,  26,  286. 
^cott  V.  Waithman,  449. 
Scott  V.  Wilmington  R.  Co.,  528. 


Scranton  v.  Calterson,  307. 

Scanlon  V.  Phillips,  9. 

Scribner  v  Kelley,  124.126. 

Scrugss  r.  Davis,  211. 

Seaboard  Mfg.  Co.  v.  Woodson,  596. 

Seals  V.  Edmondson,  59. 

Seaman  v.  Koehler,  509. 

Scare  v.  Prentice,  420,  427. 

Searle  v.  Laverlck,  57,  365. 

Sears  r.  Seattle  Con.  St.  Ry.  Co.,  373. 

Seaver  v.  Pierce,  455. 

Secord  v.  St.  Paul,  etc.,  R.  Co.,  602. 

Seefeld  v.  Chicago,  etc.,  Ry.  Co.,  489,  505. 

Sef;er  v.  P.arkhamsted,  596. 

Selby  V.  Wilmington  &  W.  R.  Co.,  347, 

353,  355. 
Selinas  V.  Vermont  State  Agr.  See.  73. 
Sellars  v.  Foster,  .'i45. 
Sellers  v.  Richmond  &  D.  R.  Co.,  604. 
Seller  v.  Pacific,  etc.,  R.  Co  ,  344. 
Sellick  V.  Lake  Shore  &  M.  S.  R.  Co.,  36, 

37,  39,  50. 
Semple  r.  Mayor,  etc.,  Vicksburg,  304. 
Senior  v.  Ward,  498,  537. 
Senn  v.  Southern  R.  Co.,  547.. 
Senter  v.  Tees,  93. 

Seutman  v.  Baltimore  &  O.  R.  Co.,  96. 
Seventzel  r.  Penn   Bank  Pa.  328. 
Severy  r.  Nickerson,  76. 
Sevier  V.  Vicksburg,  etc.,  R.  Co.,  380. 
Sewall  V.  Webster,  40,  4S0. 
Sewellr.  City  of  Cohoes,  145. 
Seybelt  v.  New  York,  etc.,  R.  Co.,  385. 
Seymeri;.  Lake,  472. 
Seymour  v.  Citizens  Ry.  Co.,  377. 
Seymour  v.  Greenwood,  203,  205. 
Seymour  v.  Maddox,  79. 
Seymour  v.  Village  of  Salamanca,  295. 
Shafer  r.  Wilson,  6,  7,  8. 
Shaffer  v.  Riseley,  454. 
Shaffers   v.  The  Gen.  Steam   Nav.  Co., 

232, 233. 
Shaller  v.  Connors,  132. 
Shallow  V.  Verden,  547. 
Shankenbery  v.  Metropolitan  St.Ey.  Co., 

486. 
Shannon  v.  Boston,  etc.,  R.  Co.,  394, 479. 
Shannon  v.  Tama  City,  313. 
Sharnian  v.  Sandars,  229. 
Sharp  V.  Grey,  273.  393. 
Sharp  V.  Mayor,  430,  431. 
Sharp  V.  Moffit,  430. 
Shari)  V.  Powell,  26,  28. 
Shattuck  V.  Bill,  433. 
Shaw  V.  Banman,  451. 
Shaw  V.  Berry,  411,412. 
Shaw  V.  Craft.  125,  506. 
Shaw  V.  San  Prairie,  322. 
Shea  V.  Potrero,  etc.,  R.  Co.,  478. 
Shea  V.  R.  R.  Co.,  204. 
Sheaf  V.  Utica,  etc.,  R.  Co.,  120. 
Shearman  v.  Anderson,  112,  121,  507. 
Shbakman   &  Reufield    on  Nkoli- 

GKNCE.* 

Shedd  V.  Moran,  555. 

Sheehan  v.  Edgar,  .595. 

Sheehan  v.  Philadelphia  &  R.  K.  Co.,  501. 

Sheel  V.  Appleton,  318. 


*  The  frequency  with  which  the  author 
cites  this  text-book  makes  it  Imprac- 
ticable, from  want  of  space  to  enumer- 
ate the  pages. 


TAHM:    of    CITAlIuN" 


lljl 


Kof<'r<Mio<'s  are  to  I'njfcs. 


Shoclcr  r.  Choflnpcake  .S:  i).  K.  Co.,  47  '. 
Shelf  I'.  City  of  llunlin«ti>n.  47.;. 
ShctUcld  r.  Conlrul  I'nion  Ttl.  Co.,.'>12. 
Snclbyvillf.  oU\,  K.  Co.  r.  I.L'wark,.VJO. 
Sheldon  c.  \V.  IT.  Tel.  Co..  |:W. 
8hollnl>iir«iT  r.  Clilciiffo,  etc.,  U.  Co.,  llti. 
Shepard  i-.  Uiitfalo,  etc..  U.  Co.,  ll'J. 
Shopliurd  I'.  ( 'rcnincr,  .031. 
Shopliaril  r.  .MouU.  JfM. 
shrpperd  r.  .Mid.  Uv.  C^o.,  3S;t. 

turidun  r.  Hrooklvn  City  U.  Co.,  508. 
-luTldim  r.  Cliiirlick,'202. 
-hcndeu  r.  Ivrtipp,  107. 
Sherlork  v.  AMImk,  r^Tl. 
Sherman  v.  Full  Ulvcr  Iron  Co.,  491. 
Sherman  f.  Hannibal,  etc.,  R.  Co.,  383. 
~~liernian  r.  Western  .SlaKO  Co.,  ."ilO. 
Sherwood  1'.  District  of  Coluinblii,  319. 
>iier\vood  v.  Chicago  &  \V.  M.  Ky.  Co., 

.')'.'7. 
■^hlbor  V.  St.  Paul,  etc.,  R.  Co.,  551. 
.Shieb  c.  Tp.  of  (.'oilier,  U5. 
Shields  V.  Kdlnbiirjch  Kv.  Co.,  213. 
Shlells  I'.  Hlacklmrno,4:'3,  4.'>7. 
ShJndelbeck  v.  Moon,  10»),  108. 
Shinotll  V.  liumpstead,  300,  445. 
Ship  V.  Cro.>*skill,3'25. 
Shlplev  V.  I!olivar,318. 
~~hlpley  r.  Fifty  Associates,  'i2,  105,  305. 
-tilpp  r.  nettrick.2t)5. 
.-Iiippey  f.  Au.  Sable,  307,515. 
>lioen  f.  Dry  Dock,  4-1. 
shotwell  V.  Dodge,  97.  B99. 
bhotwell  f.  St.  Joiiepb  &  St.  Louis   Ky. 

Co.,  117. 
Shrleve  r.  Stokes,  8. 
Shrodcr  v.  Ward,  57. 
Shuev  f.  I^tta,  'It'A. 
Shufelt  V.  Flint  tt  1'.  M.  R.  Co.,  505. 
Shupart  r.  K>can,  41. 
Shultz  V.  Hower,  (I,  10. 
Shiiltz  r.  City  of  Milwaukee,  30G. 
Shultz  r.  Wall,  411.  414.  415,  410. 
Shutze  V.  ('Incago.  etc..  U.  Co.,  486. 
Slaa  V.  Vlllape  of  Kced  City.  698. 
Sibley  f.  Aldrlch.411.  412. 
SIdekum  v.  Wabash,  etc..  Ry.  Co..  .W6. 
Siegel  V.  Milwaukee  &  N.  R.  Co.,  51. 
Siegrlst  i\  Arnol.  24,  484. 
Slemcrs  r.  KIsen.O.'i. 
Sikes  V.  Manchester.  138. 
Sllberstcin  r.  William  Wickc  Co.,  r,U. 
Sliver  r.  Kansa.s  Clty.otc.,  R.Co.,  112.  114. 
Sliver  r.  Martin,  252. 

Silver  Cord  C.  M.  Co   r.  McDonald,  485. 
Silvers  t'.  Nordllnger,  219,  2G7. 
Sllvlsr.  Ely.  430. 

Stmnia  f.  South  Car.  Ry.  Co.,  471,  504. 
Simmons  v.  McConnell.  554. 
Simmons  i\  Monier.  212. 
Simmons  r.  New  Bedford,  etc.,  R.  Co., 

874. 
Simmons  v.  Oliver.  2fi3. 
Simon  I'.  (Mty  of  Atlanta.  138. 
Simon  I'.  The  Fung  Shuey,  'M4. 
Stmonda  v.  Henrv,  425. 
Simons  r.  G.  W.  Kv.  Co.,  343,  347. 
Simons  V.  Rose.  429,  438. 
Slmonson  r.  Chicago,  etc.,  R.  Co.,  5i'9. 
Simonton  r.  T.orlng.  108. 
Simpson  r.  Tlrown.  4.'5o. 
Simpson  V.  (iriggs,  127. 
Simpson  v.  Hand,  512. 
Siuopson  V.  L.  U.  Omnibus  Co.,  523. 


Simpson  r.  I..  A  N.  W.  Ry.  Co..  VA. 

Simpson  I-.  Tcnn..  fir,. ,  R.  Co.,  H7. 

Simpson  f.  'llie  Mali-  of  Cnl.,  4'.il. 

Sinai  f.  I^ouitviUi',  etc.,  Ky.  Cu.,lM. 

Siner  i-.  (J.  W.  Kv.  Co.,  3.W. 

Singleton  v.  Kawi  (;onnt.  I{v.  Co..  30,  SIS. 

SInram  f.  I'lttsburgh,  etc.  11.  Co..  H2,  lai. 

Sisk  f.  Crump,  2X8. 

Siason  t'.  Cleveland,  etc.  R.  Co..  358. 

St.  John  I'.  KxprcHH  ("o.,  347. 

St.  Johns  &  II.  It.  Co.  V.  Ransom,  87. 

St.  Joseph,  etc..  R.  Co.  r.  Chn«r,  «6. 

Skelton  t:  L.  A  N.  W.  Rv.  Co..  277.  4«. 

Skinner  v.  I..  K.  &  S.  C.  Ry    Co.,  S2:i. 

.Skinner  f.  Wilson,  4.VI. 

Skotlowo  f.  Oregon,  etc..  Ry.  Co..a51. 

Slack  r.  Lawrence  Tp.,  95. 

Slater  t'.  Baker.  42ii. 

Slater  r.  Burlington,  etc..  R.  Co.,  B«8. 

Slater  i-.  .South  Carolina  Rv    Co.,  337. 

Slater  e.  I'tlcn.  etc.,  K    Co.'  50. 

Slattery  r.  O'Connell.  518. 

Slattcry's  Admr.  r.  Toledo,  etc.,  R.Co., 

541. 
Slaughter  r.  Metropolitan  St.  Ry.  Co.,  488. 
Slayton  r.  Freemont.etc,  R.  Co.,  78. 
Sleeman  v.  Barri'tt.  2-.'9. 
Sleeper  r.  Sandown,  .VKJ. 
Slight  r.  Gutzlair.  HU. 
Sloman  v.  llerm-,  4.'>0. 
Slo.sK<-n  V.  Railroad  Co.,  92. 
SlosMon  V.  Burlington,  etc.,  R.  Co.  472. 
.St.  Louts  f.  Kaime,  IWi. 
St.  Louis,  etc.,  K.  Co.  r.  Boll,  27.'.,  M9..^20. 
St.  Louis,  etc.,  R Co.  r.  Cantrell,.%si»,  am. 
St.  Louis,  etc.,  R.  Co   v.  Cnsner,  12-2. 
St.  r^uls.  etc..  R.  Co.  r.  Dobl.ln».5'.»,i 
St.  Louis,  etc.jR.  Co.  r.  Doyle.  39. 
.St.  I.,ouls,  etc.,  R.  Co.  e.  Drennnn,216. 
St.  I.ouls.  etc.,  R.  Co    V.  Kairnbiilrn.  396. 
St.  Louis,  etc.,  R.  Co.  v.  Klre  .\b»oc.  of 

Phila.,  588. 
St.  L.,  etc..  &  S.  R.  Co.  r.  Freeman,  513, 

6.".3. 
St.  lj)xxiB,  I.  M.  A  S.  Ry.  Co.  v.  GooUby, 

130. 
St.  Lonls.  etc..  R.  Co.  »•.  Ilnckett.  205. 
St.  Louis,  etc.,  K.  (.'o.  i-.  Hanks,  4K1. 
St.  Louis,  etc..  K.  Co.  f.  ilenson,  .V.>9. 
St.  Louis,  etc..  K.  Co.  «•.  Hopkins,  3ijS. 
St.  Louis,  etc..  R.  Co.  r.  Kelton.  191. 
St.  Louis,  etc.,  R.  Co.  v.  Ledln-ttcr,  4»>*. 
St.  Ixinis.etc,  R.  (-"o.  r.  McMillan,  121. 
St.  Louis,  etc.,  R    Co.  v.  .Maddrey,  4*'., 

5.M. 
St.  Lonls,  etc.,  R.  Co.  r.  Ncedham,  .%45. 
St.  Louis,  etc..  R.  Co.  v.  Noel,  .V.'I. 
St.  l/ouis,  etc.,  K.  Co.  V.  I'eraon,  :u^. 
St.  Ixjuls.  etc.,  R.  Co.  f.  I'lper.  ;U2. 
St.  Louis,  etc.,  R.  Co.  r.  Red  lUver,  etc. 

Line,  491. 
St.  Louis,  etc.,  R.  Co.  f.  Roxroad.514. 
St.  Louis,  etc.,  R.  Co.  r.  Klrhnrdnon.  87. 
St.  Louis,  etc.,  K.  Co.  v.  Robbnm.152. 
St.  \iOn\n,  el<-  ,  K.  Co.  r.  Rob.rts,  M. 
St.  I.ouls,  etc.,  Rfo    f.   Konenherry,  4«S. 
St.  I»uls,  etc.,  Ry.  Co.  f.  Southern  Exp. 

Co..33f3. 
St.  I.onl8.  etc..  R.  Co.  r.  SwocLSSL 
St.  LouLs.  etc.,  R.  <'o.  r.  T<mM.  11'. 
St.  Louis,  etc.,  K.  Co.  r.  Tr 
St.  Louis,  etc..  K.  Co.  r.  \\ 
St.  I^ouls.  etc,  R.  Co.  «•.  ^\ 
St.  Louia,  olc,  R.  Co.  r.  We«vw,  470. 


652 


TABLE    OF    CITATIONS. 


References  are  to  Pages. 


«t.  Louis,  etc.,  R.  Co.  v.  Wliite,  49. 

St.  Louis,  etc.,  R.  Co.  v.  Wilkerson,  462. 

St.  Louis,  etc.,  R.  Co.  V.  Winkelmau,  96. 

Small  V.  Chicago,  etc.,  R.  Co.,  322. 

Small  V.  Howard,  425. 

Small  V.  Railroad,  91. 

Smalley  v.  Appleton,  308. 

Smart  r.  Morton,  9. 

Smethurst  v.  Proprietors  Ind.  Cong. 
Church,  28,  71. 

Smid  V.  New  York,  319. 

Smith  V.  Agawan  Canal  Co.,  97. 

Smith  V.  Baker,  418. 

Smith  V.  Barnes,  438. 

Smith  V.  Birmingham  Gas  Co.,  300. 

Smith  V.  Board  of  Com'rs.  of  ^Yayne 
County,  303. 

Smith  V.  Boston  Gas  Light  Co.,  290,  533. 

Smith  V.  Boston,  etc.,  R.  Co.,  364,  365. 

Smith  V.  Brazleton,  338. 

Smith  V.  British,  etc..  Steam  Packet  Co., 
41. 

Smith  V.  Butler,  314. 

Smith  V.  Cairo,  314. 

Smith  V.  Causey,  132. 

Smith  V.  Central  R.  &  B.  Co.,  394. 

Smith  V.  Chicago,  etc.,  Ry.  Co.,  89,  373, 
471. 

Smith  V.  City  Council  of  Alexandria,  302. 

Smith  r.  Cock,  283. 

Smith  V.  Des  Moines,  320,  321,  322. 

Smith  V.  Dobson,  599. 

Smith  V.  Dygert,  64. 

Smith  V.  Eastern,  etc.,  R.  Co.,  471. 

Smith  r.  Faxon,  107. 

Smith  V.  Fletcher,  70,  92. 

Smith  V.  Fordyce,  53. 

Smith  V.  French,  35. 

Smith  i\  Gardner,  64,  65. 

Smith  V.  Oilman,  321. 

Smith  V.  G.  E.  Rv.  Co.,  .525,  526. 

Smith  r.  Smith,  2*13. 

Smith  V.  St.  Paul,  etc.,  Ry.  Co.,  39,  486. 

Smith  V.  Southwestern  Railway  Com- 
pany, 86. 

Smith  V.  Spitz,  201. 

Smith  V.  Havemever,  73. 

Smith  V.  Hestonville.  etc.,  R.  Co.,  518. 

Smith  V.  Holconib,  4.54. 

Smith  V.  Jameson,  254. 

Smith  V.  Ken  rick,  70. 

Smith  V.  Lipscomb,  434. 

Smith  V.  Team,  479. 

Smith  V.  Tnnstead,  430. 

Smith  V.  London  Docks  Co.,  71. 

Smith  V.  London  &  St.  Katherine  Docks 
Co.,  17.281. 

Smith  V.  L.  &  S.  W.  Ry.  Co.,  28,  38,  81, 

Smith  V.  Louisville  &  N.  R.  Co.,  204. 

Smith  V.  Martin,  69. 

Pmtth  V.  Memphis  &  A.  C.  P.  Co.,  208. 

Smith  V.  Milne,  221. 

Smith  V.  Minneapolis  &  St.  L.  R.  Co., 

113. 
Smith  V.  Musgrave,  29. 
Smith  V.  N.  Y  .  etc.,  R.  Co.,  205,384. 
Smith  V.  N.  Cent.  R.  Co.,  24. 
>mlth  V.  North  C'JirollnaR.  Co., 345,  346. 
Smith  V.  Overbv,  597. 
Smith  V.  Pella,".306. 
Smith  r.  Philadelphia  &R.R.  Co., 499. 
Smith  V.  IJallroad  Co.,  353. 
Smith  V.  Uead,  418. 


Smith  r.  Rio  Grande  W.  Ry.  Co.,  489. 

Smith  V.  Ryan,  82. 

Smith  V.  Sabine  &  E.  T.  Ry.  Co.,  48. 

femith  V.  Simmons,  215,217. 

Smith  V.  St.  Joseph,  318. 

Smith  V.  St.  Lawrence  Towboat  Co.,  475. 

Smitii  V.  Steele,  281. 

Smith  V.  The  Seraphls,  494. 

Smith  V.  Tripp,  37. 

Smith  V.  Village  of  White  Plains, 301. 

Smith  V.  AVestern  Ry.,  etc., 337. 

Smith  V.  W.  U.  Tel.  Co.,  595. 

Smith  V.  Wilson,  415. 

Smitha  V.  L.  &  N.  R    Co.,  348. 

Smith's  Leading  Cases,  125. 

Smith,  etc.,  R.  R.  Co.  v.  Singleton,  379. 

Smock  V.  Dade,  436. 

Smoot  V.  Wetumpka,  470. 

Smotherman  v.  St.  Louis,  etc.,  R.  Co., 
376. 

Smothers  v.  Hawks,  423. 

Smyth  V.  Bangor.  311. 

Sneesby  v.  L.  &  Y.  Ry.  Co.,  28. 

Sneider  v.  Adams  Express  Co.,  346,  361. 

Snell  V.  Rich,  252. 

Snellv.  Smith, 537. 

Snow  V.  Railroad  Co.,  396,  495. 

Snydam  v.  Moore,  212. 

Snyder  v.  Hannibal,  etc.,  R.  Co.,  388. 

Snyder  v.  Patterson,  125. 

Snyder  v.  Wltmer,  280. 

Snyder's  Admr'sv.  McCombs'  Ex'x,  255. 

Soeder  v.  St.  L.,  etc.,  R.  Co.,  554. 

Sofleld  V.  Somers,  27. 

Solomon  V.  Manhattan  Ry.  Co.,  466,  475. 

Somerset  v.  Poulett,  265. 

Somerset  &  C.  R.  Co.  v.  Galbraith,  461. 

South,  etc.,  R.  Co.  v.  Henleln,344.34ti,351, 
3i52.  3.i5,  596. 

South,  etc.,  R.  Co.  V.  McLendon.  143,  5.56. 

South,  etc.,  R.  Co.  V.  Schaufler,  381. 

South,  etcR.  Co.  V.  Sullivan,  542. 

South,  etc.,  R.  Co.  V.  Trick,  50. 

South,  etc.,  R.  Co.  v.  William,  121. 

Southampton  Bridge  Co.  v.  Southamp- 
ton Board,  298. 

Southard  v.  Minneapolis,  etc.,  Ry.  Co., 
360. 

Southcote  r.  Stanley,  62,  79,2.52,  279. 

Southern  Bell,  etc.,  Co.  v.  Watts,  462. 

Southern  Ex.  Co.  v.  Brown,  214. 

Southern  Express  Co.  v.  Crook,  346. 

Southern  Exp.  Co.  v.  Glenn,  336. 

Southern  Express  Co.  v.  Newby,  346. 

Southern  Express  Co.  v.  Shea,  ,360. 

Southern  Kan.  Ry.  Co.  v.  Clark,  365. 

Southern  Marble  Co.  v.  Darnell,  603. 

Southern  Pacllic  R.  Co.  v.  Duiour,  97. 

Southern  Pac.  Ry.  Co.  v.  Johnson,  338. 

Southern  Pac.  Co.  v.  Lofferty,  543. 

Southern  Pac.  Ry.  Co.  v.  Maddox,  352. 

South  West  Va.  Imp.  Co.  v.  Andrew,  471. 

Southwestern  R.  Co.  v.  Bently,  362. 

Southwestern  R.  Co.  v.  Felder,  340. 

Southwestern  R.  Co.  jj.  Hankereon,  603. 

Southwestern  R.  Co.  v.  Paulk,  544. 

Southwestern  T.  &  T.  Co.  v.  Crank,  603. 

Southworth  v.  Old  Colony,  etc.,  U.  Co., 
284. 

Sowers  v.  Lowe,  93. 

Sowles  V.  Moore,  35,  48. 

Spangler  v.  City,  etc.,  of  San  Francisco, 
305. 

Spannagle  r.  Chicago  &  A.  B.  Co.,  376. 


TAHLH    OF    CITATIONS. 


G53 


Refereuoes  are  to  PageH. 


fipnrk  r.  Heslop,  602. 
Kpnrr  r.  si.  Louis,  M2. 
KpauldliiK  f.  (  liiiiiRo,  etc.,  K.  Co.,  87. 
SpjiuMliiK  f.  Tlioiiiphon,  AM. 
SpuuliiliiK  t'.  Town  of  siiiTiiinn,  144. 
Spuar  f.  Mar(iiu-ile,  etc.,  U.  Co.,  'Jl. 
S|>i'nr  f.  Spfttr,  2t'i;{. 
Ppi'url)ra<-kfr  r.  Larralu'c,  4'U. 
Spears  r.  Chicago,  U.  &  i).  K.  Co.,  629. 
Speed  r.  AtlatiUc,  etf  ,  IC   Co  ,217. 
Spclglit  r.   Gaunt,  2.'i5,  -JSG,  'IbS,  2j!>,  2G1, 

202. 
Bpellman  v.  Lincoln  Rapid  Transit  Co., 

378. 
Spencer  v.  Campbell,  288. 
Spencer  v.  Illlnol»  Cent.  U.  Co.,  500. 
Spencer  v.  Milwaukee,  etc.,  K.  Co.,  r>3, 

:;78. 
Spencer  v.  Pilchcr,  211. 
Spice  r.  Hacnn,  41'.'. 
Splllano  i\  Missouri  Pnc.  Ry.  Co.,  .Wi. 
Splnatii  f.  Alias  S.  8.  Co.,  345. 
»|)iuner  r.   New  York  Central,  etc.,  U. 

Co.,  Ill,  112.  114,  llti. 
Spoffoidr.  Citv  of  Oskaloosa,  .508. 
Spofford  r.  Harlow,  39,  ti5,  4(50,482. 
Spokane  &  V.  Uv.  Co.  v.  Holt,  .118 
Spooncr  r.  Hannibal  &  St.  J.  U.  Co.,  365. 
Spraguc  r.  N.  Y.  Cc^ntral  K.  Co.,  340. 
SJirlnK  c.  llajier,  415. 
SpriuKott  r.  Hull,  462. 
Sprlnpfleld  v.  spence,  304. 
Sprlnglleld     Coneolidated     Ry.     Co.    v. 

Welsh,  .V20. 
Sproat  f.  1  Erectors,  etc.,  125. 
Sprow  V.  Uoston  &  A.  R.  Co.,  498. 
Spurrier  v.  Front  SI.  Cable  Uy.  Co.,  472. 
Squire  V.  Chillicoiho,  318. 
Squire  V.  New  York  Central  R.  Co.,  3.')2, 

353,  3.'")5. 
StackuH  V.  New  Y'ork  Cent.,  etc,  R.  Co., 

51,  500 
Stacy  f.  Dane  Co.  Bank,  443,  4.50,  451. 
Stacy  r.  Knickerbocker  Ice  Co.,  35. 
SiaPttert'.  McArthur,  127. 
Stafford  r.  Rubens,  5.52. 
Stager  r.  KidgoAve.  I'asa.  Ry.  Co.,53,376. 
Stanley  v.  City  of  Davenport,  142. 
Stanley  r.  Union  Depot  IJ.  Co.,  30. 
Staniiard  r.  L'llithornp,438. 
Stanton  v.  Louisville  &  .\.  R.  Co.,36. 
Stanlou  t'.  Norfolk  &C.  R.  Co.,  97. 
Stanton  v.  SprlnKllcld,  312. 
Staples  V.  Sclinild,205,  .589. 
Stapley  v.  L.  14   &  8.  K.  Rv.  Co,,  281,  498. 
Stale  f.  Rail linore,  etc.,  R.  Co.,  500,  542. 
Stater.  nLrdtita,  139. 
Stater.  HIanch,  454. 
Slate  r.  Hoard  of  CommisslonerB,  145. 
Slate  V.  HoHcarven,  145. 
State  r.  ISoslon,  etc.,  R.  Co.,  24,  510,  545. 
State  r.  I5roi)hy,4.53. 
State  r.  Hiirlinkton,  135. 
State  r.  Consolidated  European,  etc.,  R. 

Co.,  372. 
State  V.  Dalton.  455. 
State  r.  Grand  Trunk  R.  Co.,  139. 
Staler.  Guilford,  2.58. 
Stale  r.  Hadlock,  4.54. 
Stale  r.  HouHekcopir,423. 
State  r.  I>autr,  4b3. 
State  r.  Lowrancc,  455. 
SUter.  Mcl)<'rini>lt,  127. 
State  V.  Maine  Cuuiral  R.  Co.,  51,  472,541. 


State  r.  Manchoalor.  etc,  R.  Co.,  4W 

540. 
Statu  V.  Mcrscrcaa,  39. 
.state  r.  Mobile,  1:W. 
Slate  r.  Moore,  8<J. 
Stale  r.  .Morris,  etc,  U.  Co.,  188. 
Stale  V.  .Mullen,  451. 
State  r.  Oiiialia,  13s. 
SUto  r.  I'lillndelphta,  etc.,  K.  Co.,  .504. 
Slater.  I'robate  Court  of  Dakota  Coun- 
ty, 545. 
Slate  r.  iCcmhoff,  131. 
State  f.  Schult/.  424. 
Slate  r.  Spencer,  454. 
.stale  r.  Townsend,  345. 
Slate  r    Vermont,  etc.,  R.  Co.,  872. 
Stale  I-.  Willwinif,  M.5. 
Stuub  r.  KemlrUk,  MU. 
Slautfer  v.  .Miller  .s,.ap  Co.,  690. 
Stearns  I-.  Clly  of  KIclimond.  TOl.SOl. 
Steamboat  Crystal  I'alace  r.  Vamlerpool, 

41)7. 
Steamboat  Farmer  r.  >fcf'rnw,  4'.tl. 
Steamboat  New  World  v.  \\\ui:,'ii,  :iK4. 
Stearns  r.  City  of  Richmond,  9. 
Stebbins  r.  Central,  etc.,  R.  Co.,  91,  491, 

(■>02. 
Stebbina  r.  Kcenc,  144. 
Steel  V.  Lester,  213,  «M>1. 
Steele  r.  l{o8ion,3i«. 
Steele  r.  lUirkhardt.  40,  461.  480,  i8% 
Steele  V.  Dunham.  4.50. 
Steele  r.  So.  Kasl  R\ .,  221. 
Steffen  r.  Chl.aKo  .V  N.  W.  Ry.  Co.,  524. 
Stein  r.  Council  ItliilTs,  318. 
Stelnhau-<er  r.  Spraul,  253. 
Stephanl  r.  llrowne,  102. 
Stephens  v.  While,  429. 
.siephenson  r.  Diiiiran,  491. 
Stephenson  r.  Soiitliern  ran.  Co.,  202. 
Sterger  r.  Van  Sicltn,77,  102. 
Stern  r.  .Michigan  C.nt.  R.Co.,  112. 
Stevens  r.  Davenport,  clc,  R.  Co. ,372. 
Stevens  r.  Kell»-y,  97. 
Stevens  r.  Nichols,  75,  77. 
Stevens  r.  Siiulres,  "JIS. 
Steven.s  r.  Walker.  427.  429 
Stevens  i-.  \\'oodwBrd,  206. 
Sleveiihon  r.  .loy,  lii«'>. 
Stevenson  r.  New  Orleans,  etc.,  R.  Co., 

111. 
Stevenson  r.  Pullman   I'ulaco    Car  Co., 

404. 
Stevenson  r.  Wallace,  6,  7,  8,  9.  275. 
Stewart  r.  Austin,  325. 
Stewart  v.  Hrooklyn,  etc.,  R,  Co.,  807. 
Stewart  «.  Clinton,  9»,  802. 
Stewart  r.  Davis,  4N'. 
Stewart  r.  Kvans,  2.32. 
Stewart  r.  Heard.  413. 
Stewart    r.   luternailonal,  etc,  R.  Co., 

3'.i3. 
Stewart  r.  Lonlavllle  A  N.   K.  Co.,  SBI, 

3f>2,  537. 
Stewart  r.  Newport  News*  M.  V.R.Co., 

4*;i. 

Stewart  r.  I'nroons.  4 in. 
Stewart  r.  KIpon,  44,  .V."*'.,  .599. 
Stewart  i-.  .sandcr-on.  264. 
Stlcknev  r.  .Maidstone,  485. 
Slickney  f.  Salem,  14S. 
Stiles  r.  Cardllf  Nav.  Co..  3P0. 
subs  V.  The  .MInnta.  etc,  R.  Co.,  897. 
SllUlng  f.  Town  of  Thorp,  312. 


654 


TABLE    OF    CITATIONS. 


References  .ire  to  Pages. 


Stillson  v.  Hannibal  &  St.  Joseph  R.  Co., 

517. 
Stiuipson  V.  Connecticut  River  R.  Co., 

365. 
Sllmpson  r.  Union  Pac.  Ry.  Co.,  113. 
Slimson  v.  Fatnham,  454. 
Stiusou  V.  City  of  Gardiner,  521. 
StocK  V.  Wood,  472. 
Stoddard  v.  Village  of  Saratoga  Springs, 

304. 
Stoddard  v.  Winchester,  319. 
Stoehrr.  City  of  St.  Paul,  303. 
Sloessiger  v.  S.  Easi.  Ry.  Co.,  336. 
Stokes  V.  East.  Co.  Ry.,  395. 
Stokes  V.  Sallonstall,  485,  523,  527. 
Stokes  V.  Trumper,  438. 
Stone  V.  Cartwright,  253. 
Sione  V.  Chicago,  etc.,  Ry.  Co.,  204. 
Stone  V.  Dry  Dock,  etc.,  R.  Co.,  513. 
Stone  V.  Hills,  200. 
Stone  V.  Hyde,  239. 
Stone  V.  J*ew  York,  etc.,  R.  Co.,  340. 
Stone  V,  Rosenheim,  593. 
Stone  V.  Stone,  257. 
Storm  V.  Barger,  134. 
Storrie  v.  Marshall,  542. 
STOitT  ON  Contracts,  256. 
Story  on  Bailments,  393. 
Stoughton  V.  Manufacturer's  Nat.  Gas 
Co.,  485. 

Strains  i'.  Kansas,  etc.,  R.  Co.,  379. 

Stratton  v.  European,  etc.,  R.  C3.,92. 

Stratlon  v.  Staples,  82, 103. 

Straub  v.  Edely,  113. 

Strauss  v.  Francis,  436. 

Street  v.  Laumier,  482,  590,  591. 

Streeter  V.  Breckenridge,  308. 

Street  Ry.  Co.  v.  E.idie,  508,  509,  515. 

Strerser's  Case,  330. 

Strong!'.  Campbell,  323. 

Strong  V.  Sacramento,  etc.,  R.  Co.,  506. 

Strout  V.  Mlllbridge,  97. 

Struizell  V.  St.  Paul  City  Ry.  Co..  520. 

StUiirt  V.  Evans,  235. 

Stubley  v.  L.  &  N.  W.  Ry.  Co.,  277,  498. 

Studley  V.  Oshkosh,  306. 

Stnrges  v.  Theological  Ed.  Soc,  219,  271. 

Sturgis  V.  Robbins,  85. 

Sturt  V.  Mellish,  254. 

Stntz  t'.  Chicago  &  N.  W.  Ry.  Co.,  597. 

Sugarman  v.  Manhattan  El.   R.  Co.,  91. 

Sullivan  County  v.  Arnett,  591. 

Sullivan  v.  Boston  &  11.  it.  Co.,  77. 

Sullivan  v.  City  of  Oshkosh,  319. 

Sullivan  V.  Louisville  iJridge  Co.,  493. 

Sullivan  v.  Lowell  &  D.  St.  Ry.  Co.,  587. 

Sullivan  V.  Oregon  Ry.  &  Nav.  Co.,  112. 

Sullivan  V.  Ziner,  6,  7. 

Summerfield  v.  W.  U.  Tel.  Co.,  597. 

Summers  v.  Crescent  City  R.  Co.,  .53. 

Summers  v.  Hannibal  &  St.    J.  R.  Co., 
111. 

Sumner  v.  Walker,  360. 

Susquehanna  Depot  v.  Simmons,  218. 

•Sutherland  v.  Standard  Life  &  Ace.  Ins. 
Co.,  ,52. 

Sutherland  v.  Sutherland  L.  &  A.  I.  Co., 
377. 

Sutherland  on  Damages,  599,  602. 

Sutton  V.  Bennett,  3, 

Suttoa  V.  Clarke,  232,  301. 

Sutton  u.  Town  of  Vernon,  55. 

Sutton  V.  Wauwantosa,  480. 

Sutton  V.  WJlders,  258,  259. 


Swann  v.  Brown,  60. 

Swanu  V.  Smith,  418. 

Swannell  v.  Ellis,  438. 

Swanson  v.  French,  426,  493. 

Swearingen  v.  Missouri  R.  Co.,  Ill,  113. 

Sweeney  v.  Muri)hy,  215. 

Sweeney  v.  Newport,  308. 

Sweeny  v.  Barrett,  278,  279. 

Sweeny  v.  Old  Colony,  etc.,  R.  Co., 73,  77, 

279,  394,  505. 
Swett  V.  Cutts,  94. 
Swift  V.  Applebone,  131,  132. 
Swift  V.  Philadelphia  &  R.  R.  Co.,  339. 
Swift -y.  Staten  Island  R.  T.  R.  Co.,  520. 
Swigert  v.  Hannibal,  etc.,  R.  Co.,  53,  375, 

376. 
Swinaston  v.  LeBoutillier,  208. 
Swinfen  v.  Swinfen,  258. 
Swoboda  V.  Ward,  211. 
Swords  V.  Edgar,  102,  104. 
Sykes  v.  N.  E.  Ry.  Co.,  570. 
Sylvester  v.  Maag,  126. 


T. 

Tabor  v.  St.  Paul,  307. 

Taf  t  V.  New  York,  P.  &  B.  R.  Co.,  117. 

Talbot  V.  Minneapolis,  etc.,  R.  Co.,  111. 

Talley  v.  G.  W.  Ry.  Co.,  362. 

Tancil  v.  Seaton,  59. 

Tanner  v.  New  York,  etc.,  R.  Co.,  337. 

Tarbell  v.  Royal  Exch.  S.  Co.,  340. 

Tarry  v.  Ashton,  18,  214,  221,  223,  267,  271. 

Tatton  V.  G.  W.  Ry.  Co.,  369. 

Taylor  v.  Bailey,  107. 

Taylor  v.  Benham,  255. 

Taylor  v.  Carew  Mfg.  Co.,  465. 

Taylor  v.  City  of  Austin,  95. 

Taylor  v.  City  of  Cumberland,  306. 

Taylor  v.  Danville,  etc.,  R.  Co.,  376. 

Taylor  v.  Downey,  413. 

Taylor  v.  Evans,  437. 

Taylor  v.  Gorman,  438. 

Taylor  v.  Grand  Trunk  R.  Co.,  374,  589. 

Taylor  v.  Greenhalgh,  215. 

Taylor  v.  Mayor,  102. 

Taylor  v.  Missouri  P.  Ry.  Co.,  465. 

Taylor  v.  New  York,  102. 

Taylor  v.  Peckhara,  135,  305. 

Taylor  v.  Pennsylvania  Co.,  374. 

Taylor  v.  South  Covington  &  C.  St.  Ry. 

Co.,  520. 
Taylor  v.  Yonkers,  300. 
Taylor,  B.  &  H.  Ry.  Co.  v.  Montgomery 

347,  352. 
Taylor,  B.  &  H.  R.  Co.  v.  Warner,  551. 
Teall  V.  Barton,  81. 
Tebbult  V.  Bristol  Ry.  Co.,  71. 
Tefft  V.  Wilcox,  423,  425. 
Teipel  r.  Hilsendegen,  473. 
Telegraph  Co.  v.  Griswold,  593,  594. 
Telfer  v.  Northern,  etc.,  R.  Co.,  498,  540. 
Templeman  r.  Haydon,  392,  523. 
Templeton  v.  Linn  Co.,  136. 
Tenant  v.  Goldwin,  123. 
Tcnnenbrock  v.  South  Pac,  etc.,  R.  Co., 

51. 
Tennessee  &  C.  R.  R.  Co.  v.  Danforth, 

592. 
Tennessee  C,  I  &  R.  Co.  v-  Ilamilton,  98. 
Tennesse  C.  I.  &.  R.  Co.  v.  Herndon,  651. 
Tenney  v.  Berger,  429. 


TAllLi:    or    CITATIONS. 


b'55 


Keforeiu'i's  are  to  Pages. 


Tcrre  Ilniitc,  etc.,  U.  U.  Co.  v.  Iluck,  4:{, 

&4, 
Tcrrc  Ilnnto,  ptc,  U  Co.  r.  Graham,  H'>^. 
Terru  Ilaulc,  etc.,  K.  (Ni.  c.  .Jii<'kHon,'iii7. 
Terro  Haute  A  I.  U.  Co.  v.  Chicago,  etc., 

Uv.  C.....i71. 
Torre  Ilimle  *  I.  R.  Co.  r.  Voelker,  4'.»'.t. 
Tcrre  lliiiite  A  I'.  It.  Vo.  r.  Ilarr,  .M,  ^'.i-.'. 
Terry  c.  .New  York,  etc.,  K.  Co.,  lll.titti. 
Terrv  r.  .Snilili,  ".Mi. 
Tetlierow  f.  yt.  Joseph  &  U.  M.  Ry.  Co., 

5.')4. 
Tcwksburv  r    Rucklln,  lO.'S,  109. 
Texas  C.  Uy.  Co.  v.  Childress,  123. 
Te.\a8  Cent.  Ky.  Co.  r.  Stewart,  373. 
Texas,  etc.,  U.  Co.  v.  Capps.  ."JIK. 
Texas,  etc.,  U.  Co.  r.  Crowdor,  471. 
Texas,  etc.,  Kv.  Co.  r.  Doiijrlass.  fi93. 
Texas,  etc.,  |{    Co.  v.  Mtirphv,  37.^. 
Texas  &  S.  O.  R.  Co.  r.  Herrv,  540. 
Texas  &  N.  <).  Ry.  <'o.  f.  IMriRham,  380. 
Texas  &  N.  O.  Ry.  Co.  r.   Brown,  46fi, 

49'.t,  ."502. 
Texas  &  P.  Ry.  Co.  r.  Adnni'*.  .%!. 
Texas  &  r.ic.  Rv.  Co.  r.  Hest.  .3'.i6. 
Texas  &  I'.  R.  Co.  v.  Black.  208. 
Te.xas  A  P.  Kv.  Co.  v.  Bledsoe,  540. 
Texas  A  1'.  Kv.  Co.  v.  Bovd,38.'. 
Tex:i8  A  P.  Ky.  Co.  v.  Brown,  3".VJ. 
Texas  A  P.  Ky.  Co.  v.  Buckalew,  374. 
Texas  A  P.  Ky.  Co.  v.  Dohertv,  3.1. 
Texas  A  Pac.  Kv.  Vn.  r.  Fl<tch(!r.  51.'). 
Tex.is  A  P.  Kv.  Co.  r.  Fnller.no'. 
Texas  A  P.  Kv.  Co.  c.  Giilnes.  87. 
Texas  A  P.  l{v.  Co.  v.  <inrcia,3S4. 
Tex.is  A  P.  Kv.  Co.  r.  Gorman.  2. 
Texas  A  P.  Kv.  Co.  r.  Hall,  .MO. 
Texas  A  P.  Kv.  Co.  r.  Hamilton,  374. 
Texas  A  P.  i:.  Co.  V.  Havden,  204. 
Texas  A  P.  Ky.  Co.  c.  Klepper,  3.54. 
Texas  A  P.  Kv.  Co.  v.  Manpum,  104. 
Texas  A  P.  Kv.  Co.  r    .Mather,  204. 
Texas  A  P.  K.  Co.  v.  Moody,  2i)4. 
Texas  A  P.  Co.  r.  Overall,  401. 
Texas  A  P.  Kv.  Co.  v.  Kohertson,  .540. 
Texas  A  P.  Ky.  Co.  v.  Sims.  351. 
Texas  A  St.  I,.  Ry.  Co.  c.  Orr,  470. 
The  Anerlv,  401. 
The  A.  \V." Thompson,  .540. 
The  Baltimore,  etc.,  K.  Co.  r.  State,  .52. 
The  l{ernlna,.506. 
The  Brantford  City,  35,S. 
The  Caledonia,  3.53. 
The  Catherine  r.  Dickinson,  491. 
The    Cleveland,  etc.,   K.  Co.  v.  Snther- 

l.'ind,  5s7. 
The  Corsair,  542. 
The  Cumberland  Valley  R.  Co.  f.  Man- 

Kans,  54. 
The  Morris  Eckhoff,  491. 
The  Knrlque,  3.55. 
The  Fred  \V.  Chase.  491. 
The  Georgia,  etc.,  R.  &  Banking  Co.  r. 

Cox.,  121. 
The  German  Passenger  Ry.  Co.  v.  Wnll- 
„lnK,377. 

The  Gulf  Stream,  491. 
Thelladgi,  318. 
The  Havertoti,  491. 

The  International,  etc..   R.  Co.  r.    Kin- 
dred..511. 
The  Kansas  City,  etc.,  R.  Co.  i-.  Simpson, 

34().  J'        •  p       • 

The  .Maryland  R.  Co.  f.  Nouber,  51,  ,'.oi. 


The  Max  MorrI*  v.  Curry,  4«J6.  491. 

The  .MIlnii.fto7. 

The  Mlraiidn,  i'M. 

The  .Morning  Llglit,  491. 

Tlu!  Plytnoiheun.  4;M. 

The  People  f.  giiick,  437. 

The  Kelianco,  627. 

The  Sam  Brown,  491. 

The  Samuel  K.  Hprlng,  52»J. 

Tlie  Sidney, 527. 

The  Sir  (iiirnet  Wolselcy,  478. 

The  Wabash,  etc..  K.  Co.  v.  Wallace,  404. 

Thelneeii  i-.  B«dlc  Plains,  ,11'.t. 

Tlieroux  r.  .VDrthern  Pac.  K.  Co.,  iVJ»l. 

Thickstune  c.  Howard,  411. 

Thirteenth,    etc  ,    St.    Pass.    Ry.   Co.    r. 

Boiidroii,  .52.  377. 
Thomas  v.  Alientown,  6,  7. 
Thomas  r.  Boston,  etc.,  R.  Co.,  .'{40. 
Thomas  i".  Chicago,  etc. ,  Ry,  Co.,  ai,  508. 

620. 
Thomas  f.  Harris,  .587. 
Thomas  r.   HenjeH.74. 
Thomas  t'.  Khyinney  Ry.  Co.,. 382. 
Thomas  v.  .Schee,  43ii. 
Thomas  f,  Wabash,  etc.,  Ky.  (;o.,34a. 
Thomas  r.  Wlnchchter,  11,  13,  2*J,  2«J7. 
Thome  v.  Loudon,  3il4. 
THO.MI'SON'S  (AKItlKKHOF  PA.SSENOKRS. 

3<>»,3r,(),  374,  .t>3,  4U1,  4U*.. 
Thompson  r.  Central,  etc.,  R.  Co.,  470, 
Thompson  r.  Cook,  120, 
Thompson  r.  Finch,  2.'i7. 
Thompson  v.  Flint  A  P.  .M.  Ry.  Co.,  4«5. 
Thompson  r.  Jackson,  449. 
TiiOMl'SUN'S    LlAUlLITY    OF    UPPICKR8, 

324. 
Thompson  v.  Louisville  A  X.  R.  Co  ,43, 

5i7,  .544. 

TlIO.MI".SON  ON  N'EOI.KJKNCK,  2,  .><.  31.  SS, 
49,  5(1,  04.  H't,  X't.  KH.  KRt.  2-52,  2»W,  •.•7i, 
277,  292,  203,  :iilfl.  ;!13. 4.V(,  4<'.l ,  462,  4ti3, 473, 
474,491,  49.f,  517,  .52-i.  .532,  537. 

Thornburg  v.  American  Strawbonrd  Co., 
537. 

Thornton  r.  Cleveland,  etc.,  Rv.  Co.,  4'.»9. 

Thorogood  r-.  Bryan,  50<i,  507,511,  (ju«j,  (>uj. 

Thorp  c.  Minor,  212. 

Thorpe  v.  Missouri  Pac.  Rv.  Co.,  4<*i5,  4'.»4. 

Thorpe  v.  Kallroad  Co.,  4irt»,  4lo,  411. 

Thurber  v.  Harle.n.  etc.,  K.  Co.,.'si3. 

Thurlnger  i*.  .New  York,  etc.,  R.  Co.,  S09, 

Thurston  r.  Hancock,  <i,  7. 

Tibblts  V.  Knox,  etc..  It.  Co.,  ilO. 

Tierney  r.  Troy,  143,  114. 

Tllllu  r.  .McCoruuick,2'.»2. 

TU'he  V.  Lowell.. 521. 

TUIitt  t:  Ward.  5.  124.  I"*,  2K4,  9«. 

Tllley  V.  Hudson  Klver  K.  C       '   ' 

Tllley  r.  6t,  Louis  A  S.  F.  I; 

Timlin  I',  standard  Oil  Co..  ; 

Timpson  f.  Manhattan  Ky.  (.u.,  ,.■,>. 

Tlsdale  r.  Norton,  M. 

Tltcomb  V.  Fitchliurg  K.  Co.,  143, 

Tobias  f.  Michigan  Cent.  R.  Co.,  SOL 

Toliln  f.  Missouri  Pac.  Ry.  Co.  031,  539, 
542. 

Tobln  V.  Portland,  etc,  R.  Co.,  73,  SJKJ. 

Todd  v.  <'ltv  of  Troy,  312. 

Todd  V.  (;ockrell.271. 

Todd  f.  Flight,  102. 

Todd  V.  Old  Colony,  otc,  B.  Co.,  53.  378. 
3S4. 

TaUolt  f.  Wabash  R.  Co.,  3«ja,  866. 


656 


TABLE    OF    CITATIONS. 


References  are  to  Pages. 


Toledo,  etc.,  R.  Co.  v.  Beggs,  4S2, 527. 
Toledo,  etc.,  R.  Co.  v.  Brooks,  482. 
Toledo,  etc.,  R.  Co.  v.  Gary,  110,  111,  119. 
Toledo.etc,  R.  Co.  v.  Chapln,  113. 
Toledo,  etc.,  R.  Co.  v.  Cline,  51,  464,  499. 
Toledo,  etc.,  R.  Co.  v.  Coen,  117. 
Toledo,  etc.,  R.  Co.  r.  Conroy,  541. 
Tolodo.  St.  L.  &  K.  R.  Co.  v.  Crittenden, 

512. 
Toledo,  etc.,  R.  Co.  v.  Eden,  117. 
Toledo,  etc.,  R.  Co.  v.  Grable,  514. 
Toledo,  etc.,  R.  Co.  v.  Gru.'^h,  73. 
Toledo,  etc.,  R.  Co.  v.  Hammond,  364. 
Toledo,  etc.,  R.  Co.  v.  Harmon,  205. 
Toledo,  etc.,  R.  Co.  v.  Johnson,  590. 
Toledo,  etc.,  R.  Co.  v.  Jones.  51. 
Toledo,  etc.,  R.  (o.  v.  Maxfield,90.  • 
Toledo,  etc.,  R  (!o.  v.  Moore,  541. 
Toledo,  etc.,  R.  Co.  v.  Owen,  114. 
Toledo,  etc.,  R.  Co.  v.  Riley,  503. 
Toledo  Con.  St.  R.  Co.  v.  Sweeney,  320. 
Toledo,  St.  L.  &K.  C.  R.  Co.  t;.Tapp,363. 
Tolmanr.  Syracuse,  473. 
TolHon  V.  Inland  &  S.  C.  Co.,  470. 
Tonile  V.  Hampton,  104,  464. 
Tompkins  v.  Sands,  449,  451. 
Toomey  v.  L.  B.  &  S.  C.  R.  Co.,  389,  487. 
Tootle  V.  Clifton,  93.  94. 
TopekaClty  R.  Co.  v.  Hlggs,  377. 
Topham  V.  Goodwin,  229. 
Topping  V.  Town  of  St.  Lawrence,  543. 
Torrey  v.  City  of  Scranton,  95. 
Torrey  v.  Boston  &  A.  R.  Co.,  376. 
Totten  V.  Phipps,  62,  72,  73. 
Toubv.  Schmidt,  412. 
Towanda  R.  Co.  v.  Mnnger,  461. 
Tower  V.  Utica,  etc.,  R.  Co.,  363. 
Toole  V.  Becket,  107. 
Town  of  Albion  v.  Hetrlck,  508. 
Town  V.  Armstrong,  108. 
Town  of  Fowler  v.  Linquiat,  33. 
Town  of  Gosport  v.  Evans,  307. 
Town  of  Knightstown  v.  Mu9grove,510. 
Town  V.  Lamphire,  284. 
Town  of  Montezuma  v.  "Wilson,  318. 
Town  of  Monticellor.  Kenard,  319. 
Town  of  PoseyvUle  v.  Lewis,  479. 
Town  of  Prescott  v.  Connell,  39. 
Town  of  Rosedale  v.  Ferguson,  318. 
Town  of  Salem  v.  Gillen,314. 
Town  of  Rullivan  v.  Phillips,  95. 
Town  of  Nappaneet'.  Rnckman,596. 
Town  of  Wheaton  v.  Hadley.  318. 
Townsend  v.  Brlggs,  596. 
Townsend  v.  City  of  Paola,  602. 
Tp.  of  Crescent  v.  Anderson,  315. 
Tp.  of  Burrell  v.  Uncapher,  137. 
Tp.  of  North  Manheim  v.  Arnold,  142. 
Township  of  Westmahony  v.  Wiitson,  33. 
Townsley  v,  Missouri  Pac.  Ry.  Co.,  121. 
Tozerv.  Child,  445. 

Traoyv.  Pullman  Palace  Car  Co.,  408. 
Tracy  r.  Williams,  451. 
Trainors'  Case.. 387. 
Tramper  v.  Verhage,  133. 
Transfer  v.  Kelly,  509. 
Transportation  Co.  v.  Chicago,  9,  302. 
Tranep.  Co.  v.  Downer,  532. 
Tranter  v.  City  of  Sacramento,  137. 
Trask  v.  Shotwell,  77. 
Tread  win  v.  Great  Eastern  Ry.  Co.,  336. 
TreaHon  v.  Pearman,  438. 
Tredway  v.  Sioux  City,  etc.,  R.  Co.,  114. 
Trigg  V.  St,  Louis,  etc.,  R.  Co.,  597 


Trinity  &  S.  Ry.  Co.  v.  Lane,  107. 
Trltts  V.  X.  Y.  and  N.  E.  R.  Co.,  32. 
Trope  v.  Kerns,  437. 
Trapnell  v.  Red  Oak  Junction,  321. 
Trousclair  v.  Pacific  Coast  S.  S.  Co.,  504. 
Trow  V.  Vermont,  etc.,  R.  Co.,  119,  460, 

463,  474. 
Trowbridge  v.  Danville  Street  Car  Co., 

469. 
Trowbridge  v.  True,  9. 
Troxel  v.  Vinton,  321. 
Troy  V.  Cape  Fear  &  Y.  V.  R.  Co.,  26. 
Truax  v.  Chicago,  etc.,  Ry.  Co.,  77. 
True  V.  Int.  S,  Co.,  594. 
Trueman  v.  L.  B.  &  S.  C.  Ry.  Co.,  84. 
Truesdell  v.  Combs,  451. 
Truman  v.  L.  B.  &  S.  C.  Ry.  Co.,  298. 
Trumbull  v.  Nichol.son,  433,436. 
Trustees  v.  Boisseiux,  325. 
Tuberfleld  v.  Stamp,  81,  84. 
Tucker  v.  Baltimore  &  O.  R.  Co.,  474. 
Tucker  v.  Bradley,  454. 
Tucker  v.  Chaplin,  537. 
Tucker  v.  Salt  Lake  City,  319. 
Tuff  V.  Warman,  459,  462,  507. 
Talley  v.  Chicago,  B.  &  I.  R.  Co.,  384. 
Tally  V.  Fitchburg  R.  Co.,  650. 
Tunstall  v.  Chri.^tian,  7,  8. 
Turley  v.  Thomas,  63. 
Turner  v.  Buchanan,  33. 
Turner  v.  Ft.  Worth  &  D.  C.  Ry.,466. 
Turner  v.  Haar,  48. 
Turner  v.  Holtzraan,  138. 
Turner  v.  Klekr,  2S0. 
Turner  v.  Newburg,  292. 
Turner  v.  Page,  4.53. 
Turner  v.  The  Hannibal,  etc.,  R.  Co.,  51, 

499. 
Turner  v.  Thomas,  66,  82. 
Turner  v.  Vicksburg,  etc.,  R.  Co.,  394. 
Turpen  v.  Booth,  450. 
Turquand  v.  Marshall,  327,  328. 
Tuttle  V.  Manufacturing  Co.,  103. 
Twakey  v.  Fruin,  2.'57. 
Twegg  V.  Ryland,  127. 
Twogood  V.  New  York,  316,  479. 
Twomley  v.  Central  Park,  etc.,  R.    Co., 

486,  487. 
Tyler  r.  Alfred,  449,  451. 
Tyler  v.  Old  Colony  R.  Co.,  499. 
Tyler  v.  Rlcamore,  45. 
Tyler  v.  Western  Union  Tel.  Co., 527, 594. 


u. 

Ulrich  V.  Dakota  Loan  &  Trust  Co.,  8. 

Ulrich  V.  Railroad,  410. 

Ultzen  V.  Nlcols,  60. 

Undhejem  v.  Hastings,  478. 

Union  Bank  v.  Govan,  436. 

Union  Bank  v.  Grav,  436. 

Union  Manufacturing  Co.  v.  MorrUsey, 

495. 
Union  Pac.  Ry.  Co.  v.  Adams,  498. 
Union  Pac.  Ry.  Co.  i;.  Arthur,  88,  90. 
Union  Pac.  R.  Co.  v.  Arttst,  208. 
Union  Pac.  Ry.  C  >.  v.  Dunden,  519. 
Union  Pac.  Ry.  Co.  v.  Callahan,  50. 
Union  Pac.  R.  Co.  v.  Erie  R.  Co.,  339. 
Union  Pac.  Ry.  Ca.  v.  Goodridge,  339. 
Union  Pac.  Ry.  Co.  v.  Hutchinson,  500. 
Union  Pac.  Ry.  Co.  v.  Jones,  597. 


TABLE   OP    CITATIONS. 


r,57 


Keferences  airo  to  rnjicoM. 


Union  I'nc.  K.  Co.  t'.  Kellor,  87. 
Unluu  I'lic.  Ky.  Co.  v.  Lt'nliy,  isi. 
Union  I'nc.    Uy.    Co.    f.  Mcbonnlil,  'iss, 

M9. 
Union  Tac.  Uy   Co.  r.  Merles,  462. 
Union  I'ac.  U."  Co.  f.  NicIioIh,  :i88. 
Union   I'ai".    l{y.  Co.  f.  K»iiicy  S.'iS. 
"Union  I'liclflc.  It.  C<>.  r    KollinH,  405. 
Union  I'nc.  \i.  Co.  r,  Male,  4!>;t. 
Union  I'ac.  Uy.  Co.  c.  Tag»{art,.S:W. 
Union  Pac.  D.  A  G.  Uy.  Co.  r.  Williams. 

61K). 
Union  Steamship  Co.  r.  New  York,  etc., 

Co.,  4'.il. 
Union  Stock  Yard,  etc.,  Co.  r.  Roarkc, 

77. 
Union  Stone  &  Mach.  Worker.  Caswell, 

454. 
United    Society   of   Shakers  r.    Under- 
wood, :V-'4,  Ml. 
United  Stales  f.  Ajipleton.  7. 
Unlled  Slates  r.  behan,  .V.t2. 
United  Stutes  r.    Nat.  Exchange  Bank, 

44  i. 
United  States  r.  Peachy,  6,  8. 
United  StutcH  Express  Co.  v.  Backraan, 

33C),:U4.34«. 
United  States  E.xprees  Co.  v.  Harris,  344, 

347,  MS. 
U.  S.  Tel.  Co.  V.  Gil<ler8leeve.,-.ni.  .'J9.'?,  594. 
Upham  f.  Detroit  Cliv  Uy.  Co.,  .>2,:}77. 
Upjohn  V.  Ulcliland  Township, 'J8. 
Unas  V.  I'ennsvlvanla  U.  Co.,  51. 
Urquhart  v.  City  of  Ogdensbnrjr,  301,  ,307. 
Usher  v.  West  Jersey  U.  Co.,  555. 


Y. 


Vail  r.  Jackson,  436. 

Vale  r.  Hliss,  H-2. 

Valentine  r.  Broadway  &  S.A.JR.  Co.,  370. 

Vallor.  U.  S.  i;xp.Co.,B9. 

Van  Alta  v.  McKlnney,  432. 

Van  Aiiken  v.  Chicago,  etc.,  R.  Co. ,'482. 

Van  Urunt  r.  Cinclnnall,  etc.,  11.  Co.,  539. 

Vance  r.  Throckmorton,  412. 

Van  Ch-ave  v.  Hiicher,  4.i3. 

Vanderbeck  r.  Hendry,  75.  279,  519. 

Vanderblltr.  Uichniond  Tp.  Co., 20.^. 

Vanderpnft  v.  Delaware  It.  Co.,  110. 

Vanderline  v.  Smith,  437. 

Vanderpool  v.  Husson,  141. 

Van  Diizer  r.  Kliuira,  etc.,  R.  Co.,96. 

Van  Dyke  v.  Cincinnati,  3ii9. 

Van  Ktten  v.  Town  of  Wcstport,  144. 

Van  Fleet  r.   New  York,  etc.,  U.  Co.,  83. 

Van  <;tnl  r.  Chicago,  etc.,  Uv.  Co.,  554. 

Vanhooser  v.  llcrRhoff,  423,  493. 

Van  I.i-axenr.  Tyke,  282. 

Van  Norden  v.  Uiiliinson,  55. 

Van  Sandan  r.  Browne,  434. 

Van  slvck  r.  Shell,  283. 

Vnn   lol  r.  S.  K.  I{y.  Co..  367. 

Van  Wert  Nat.  Bank  v.  First  Nat.  Bank, 

442. 
Van  Winkle  v.  American  Stoam  Boiler, 

Ins.  Co.,  12. 
Varncy  f.  Manchester.  520. 
Varnum  i:  Martin,  42<.). 
VauKhan  f.  Mcnlove,  81,  34. 
VauKhan  v.  Tall  Vale  U.  Co., 2,  84.  89,277. 
Vaughton  i-.  Loudon  &N.  W.  Uy.  Co.,  342. 


Vnwter  f.  Hull/..  ..i'.   .« 

Vecrhusen  v.  CIiIcaku,  etc.,  IL  Co.,  111. 

113. 
Vcilch  r.  RuHsell,  4'22. 
Veiiables  f.  .•^mith,  .•'K),  2i:i. 
Vciinal  r.  tiarnt-r,  47h. 
Vhllbeck  I-.   .\.  V.  Cent.  Uv.  Co..  OflJ. 
Vick  r.  New  York  C<nl.,  ci'c.  It   Co  .  VH. 
VIckers  v.  The  Atliiullc,  oic,  11.  Co..  43. 

513. 
VIcksburg  r.  Henncsiiy,  142,  47.^. 
Vicksburg,  etc..  It.  Co.  v    Hurt.  :i73. 
VIcksl.urK  *  M.  U.  Co.  r.  rhilllp*,  531, 

539,  .')42.  647. 
Victor  MIn.  Co.  v.  MornlnK  Star  Mln. 

Co.,  6. 
Victory  r.  Fornn.  107. 
\  Igo  Ag.  Soc.  V.  lirumfleld,  (to. 
Village  of  Carlervllle  t:  Cook,  SH.  308. 
Villiijte  of  Clavton  r.  Brooks,  314. 
\  lliage  of  KvnnHion  r.  KItzircrnId,  307. 
Vlll:igo  of  Jelferwon  f.  Chapman, -2^.1!, 318, 

4i;t. 

Village  of  Mansfield  r.  Moore.  SOn,  rtu. 
X'lllago  of  .MurHellles  r.  Howlaml,  llti. 
Village  of  MarHcllli-H  r.  KIner,  I4ti. 
Villat'e  of  (^rleanH  v.  Terry.  46.'>. 
Vlll:ige  of  Valparalxo  v.  Donovan,  30*5. 
VlTKinia,  etc.,  Ity.  Co.  c.  Johnson.  .'t59 
Virginia,  etc..  It.'  l^'o.  r.  Savers,  ;M5. 
Virginia  M.  J.  Uy.    Co.  t'  Washington, 

372. 
Vredenburg  r.  Behan,  125. 
Voegell  t'.  I'lckcl  M.  A  G.  Co.,  'JOQ. 


Waba.sh  U.  Co.  r.  Black,  XV>. 

Wabach  It.  Co.  r.  Brown,  ;M4. 

Wabash  Itv.  co.  i'.  Karver,  215. 

Waba-h  H.  Co.  r.  I- em.-*,  llii. 

Wabash  Ky.  ('o.  «•.  Locke,  .'i24. 

Waliash  Uv.Co.  c.  .Morgan,  596. 

Wabahh  U.'  Co.  r.  .Nice,  ILV 

WabiiHh  Uy.  Co.  r.  I'earson.  146. 

Wabash  It.  Co.  v.  Schacklet,  .'.08. 

Wabash  It.  Co.  v.  Smith,  87. 

Wabash  It.  Co   r.  /elKler.  114. 

Wachpinan  r.  Columbia  Bank,  441. 

Wade  f.  Carr,  63. 

Wade  r.  Leroy,  f)'.C 

Wadhnms  v.  (Jay, 437. 

Wadsworlh  f.  Connell,264. 

Wadswortti  r.  .Marshall,  4:14. 

Wain  V   B.avi-r,  4-2'.i. 

Waltc  r   N.  K    Uv.  Co.,  507,  SIX 

Wakpfield  r.  Ncw.dl,!'4,  3<r2. 

Wakeham  v.  Tp.  of  St.  Clair,  137,  142. 

Wakeman  r.  Dalley,  324. 

Waki'iiian  v.  Itobliison,  ."28. 

Wald  (•    Louisville,  elc.  U.  Co.,  967. 

Waldick  f.   Itraiiil.'.  432. 

Wald.ii  V.  Bolton,  4.!:. 

Waldo  r.  Gooilnell,  \Vt. 

Waldron  r.  Haverhill,  .TOO. 

Walkenhaur  v.  Chlcjigo,  etc,   Ry.  Co., 

11.'-. 
Walker  I'.  Cltv  of  Kansas,  144. 
Walker  r.  Erie  K.  Co.,  .VO. 
Walker  r.  Globe  Mfg  A  Imp.  Co.,  108. 
Walker  r.  Goe.  28.  447. 
W  alker  v.  Goodrich,  432. 


4-' 


658 


TABLE   OF    CITATIONS. 


References  are  to  Pages. 


Walker  r.  Herron,  130. 

Walker  V.  Hallock,  449. 

Walker  v.  Jackson,  342. 

Walker  r.  Lake  Shore  &  M.  S.  Ry.  Co., 

Walker  v.  Old  Colony  R.  Co.,  95. 
Walker  v.  Reldsvllle,  315,  479. 
Walker  t'.  Stevens,  433. 
Walker  v.  Vicksbarg,  S.  &  P.  R.  Co.,  314, 

379. 
Walker  v.  Westfield,  474. 
Walker  r.  Winstanley,  77. 
Walkup  V.  May,  65. 
Wall  V.  Llvezay,  527. 
Wallace  v.  Cannon,  482. 
Wallace  v.  Clayton,  337. 
Wallace  v.  Dublin,  etc.,  Ry.  Co.,  335. 
Wallace  v.  Evans,  140. 
Wallace  v.  Lincoln  Sav.  Bank,  324,  328. 
Wallace  v.  Matthews,  345. 
Wallace  v.  Merrimack  Riv.    Nav.,  etc., 

Co.,  40,  481. 
AVallace  v.  New  York,  587. 
Wallace  v.  Western  W.  C.  R.  Co.,  592. 
Wallace  v.    Wilmington  &   N.  R.  Co., 

602. 
Wallace  v.  Zent,  108. 
Waller  v.  Dubuque,  301. 
Waller  V.  Lasher,  224. 
AV^alling  V.  Potter,  417.  ^    „    ^ 

Walllngford  v.  Columbia  &  G.  R.  Co., 

345,  353. 
Wallis  V.  L.  &  S.  W.  Ry.  Co.,  362. 
Walpole  V.  Carlisle,  4:50. 
Walsh  V.  Fltclibnrg  R.  Co.,  78,  519. 
AValsh  V.  New  York,  '.'M. 
AValsh  V.  Oregon,  etc.,  R.  &  Nav.  Co., 

473. 
Walsh  V.  Porterfleld,  414,  415. 

Walsh  V.  Virginia,  etc.,  R.  Co.,  111,112, 
528. 

Walters  v.  Chicago,  etc.,  R.  Co.,  518,  546. 

AValters  r.  Pfeil,  69. 

VValtham  v.  Kemper,  135. 

Walton  V.  Ackerman,  489. 

Walton  V.  Booth,  44,  266. 

Walton  V.  Christie,  587. 

Walton  V.  St.  Louis,  etc.,  R.  Co.,  113. 

Wann  v.  W.  U.  Tel.  Co.,  594. 

Ward  V.  Blackwood,  596. 

Ward  V.  Fagin,  107. 

Wardv.  Gen.  OmniVjus  Co.,  206. 

Ward  V.  Rochester  Electric  Ry.  Co.,  499. 

Ward  V.  Sands,  434. 

Ward  Co.  t;.  N.  O.  City  R.  Co.,  602. 

Warden  v.  Railroad  Co.,  324. 

Wardle  v.  The  New  Orleans,  etc.,  R.  Co., 
54. 

Warner  v.  Griswold,  432,  433. 

Warren  Bank  t'.  Suffolk  Bank,  452. 

Warren  v.  Fitcliburg  R  Co.,  374. 

\Varrcn  v.  Kaufman,  .533. 

\Varr('n  v.  Railroad  Co.,  274. 

Warnilngton  v.  Atchison,  etc.,   R.  Co., 
4SS. 

Washburn  Mfg.  Co.  v.  Worcester,  140. 

Washington  &  G.  R.  Co.  v.  Tobriner,  472, 
490,  597. 

Wamner  v.  Delaware,  etc.,  R.  Co.,  46,  284, 
372,  373. 

Water  Co.  v.  Ware,  218,  219,  267. 

Waterbury  v.  New  York  Central,  etc.,  R. 
Co.,  383. 

Waterman  v.  Alden,  257. 


Wnterman  v.  Chicago  &  A.  R.  Co.,  42, 

474. 
Watler  v.  Chicago,  etc.,R.  Co.,  119. 
Watkins  v.  Goodall,  108. 
Watkins  v.  Gt.  W.  Ry.  Co.,  389. 
Watkins  v.  Roberts,  59. 
Watkins  v.  Rymill,  3(i5,  367. 
Watson  V.  Georgia  Pac    Ry.  Co.,  379. 
Watson  V.  Lisbon  Bridge,  590,  591. 
Watson  V.  Muirhead,  428,430,  434. 
Watson  V.  St.  Paul  City  Ry.  Co.,  374. 
Watt  V.  Brookover,  437. 
Watts  r.  Girdlestoue,  263. 
Watts  V.  Porter,  438. 
Way  V.  Townsend,  451. 
Wayde  v.  Lady  Carr,  65. 
Wear  v.  Gleason,  414. 
Webb  V.  Denver  &  R.  G.  W.  Ry.  Co.,  542. 
Webb  r.  East  Tenn.  V.  &  G.  R.  Co.,  540. 
Webbv.  R.  R.  Co.,  46,  85,  89. 
Webb  V.  Rennle,  524. 
Webber  v.  Hoag,  127. 
Weber  v.  New  York  Cent.,  etc.,  R.  Co., 

500. 
AVeber  Wagon  Co.  v.  Kehl,  495. 
Weblin  v.  Ballard,  232. 
Webb's  Pollock  on  Torts,  2,  28, 78, 89, 

131,  134,  283, 286,  287,  519,  603. 
Webster  v.  Rome,  etc.,  R.  Co  ,  382. 
Weed  v.  Panama  R.  Co.,  207,  356. 
Weeks  on  attorneys,  433, 435, 437. 
Weenis  v.  Mathieson,  539. 
Weetjen  v.  Vibbard,331. 

Wchman  v.  Minneapolis,  etc.,  Ry.  Co., 

360. 
Weick  V.  Lander,  38. 

W eider.  Thie),  128. 

Weightman  v.  Louisville  N.  O.  &  T.  Ry. 
Co.,  41,  43. 

Weii  V.  Dry  Dock,  etc.,  R.  Co.,  514. 

Weiland  v.  White,  437. 

Weiler  v.  Manhattan  Ry.  Co.,  596. 

Weiner  v.  Hammell,  306. 

Weintzi'.  Kramer,  452. 

Weir  V.  Express  Co.,  348. 

Weis  V.  Madison,  94,  303. 

Weis  V.  Oregon  1.  &  S.  Co.,  97. 

Welsenberg  v.  Winneconne,  144, 145. 

Weissert).  Dennison,  442. 

Welssner  v.  St.  Paul  City  Ry.  Co.,  514. 

Welch  V.  Challen,  430. 

Welch  V.  Laurance,  392,  523. 

Welch  V.  McAllister,  72,  278. 

Weldon  v.  New  York  &  Harlem  Ry.  Co., 

Welfare  v.  L.  B.  &  S.  C.  Ry.  Co.,  71,213, 

300,  524,  526, 530.  .533. 
Wellent'.  Morrill,  104. 
WellenhofiEer  v.  New  York,  etc.,  R.  Co., 

505. 
Weiler  v.  L.  B.  &  S.  C.  Ry.  Co.,  399. 
Weiler  r.  McCormIck,  141. 
Wellington  v .  Downer  Kerosene  Oil  Co., 

13,  287. 
Wellockv   Constantine,  549. 
Wells  V.  Abraham,  549. 
Wells  V.  Howell,  109. 
WellB  V.  New  York  Cent.  R.,  24.  385,  386. 
Wells  V.  Sibley,  82.  „      „,. 

Wells  V.  Washington  Market  Co.,  214. 
Welsch  V.  Jackson  Co.  Horse  It.  l)";;"^- 
Welsh  V.  Pullman  Palace  Car  Co..  40I. 
Welsh  V.  Railroad  Co.,  123,  352,  3a3,  504. 
Welsh  V.  St.  Louis,  141. 


TAHLK    OF    CITATIONS. 


cyj 


Rpfcrencos  arc  to  ru>,'«'s. 


WoUh  V.  Wilson,  189. 

Welter  f.  Dunk,  80. 

UoikIl'II  f.  Uaxler,  TX 

Wenilell  f.  N.  Y.,  etc.,  R.  Co.,  .11,  41)8. 

Woiidoll  V    Trov,  •-•".1.'). 

Wenlw.irth  v.  Ji'tfLTson,  40,  480. 

SVerlof.  Ix)n>f  Irtland  IC.  Co.,  52,  370. 

Werner  r.  \Vinterl<otti>ni,  yi'J. 

Werth  V.  City  of  .Sprlnnllold,  302. 

WcHcott  V.  KarKo,  'Mb. 

Wo.Mlcy  City  Coal  Co.  v.  Ilerlcr,  485. 

West  r.  Martin,  42;(,  4-.M. 

Went  V.  The  Uerlln,  :{37. 

WoHt  V.  Ward,  32. 

Wt'Hi  Mahanoy  f.  Watson,  IV),  50. 

Wcstaway  r.  Froat,  4:50. 

Wc8il)rook  V.  Uailroad  Co.,  513,  516. 

We-terfleld  r.  Levin,  5\!>. 

Western  IJank  v.  Douglas  Court  of  Sees., 

:!27. 
WeNlcrn  Mfg.  Co.  v.  The  Guiding  Star, 

35'.t. 
Western  Transit  Co.  v.  Howklng,  340. 
Western,  etc.,  H.  Co.  r.  Itlslioii,  :isc. 
Western,  etc.,  K.  Co.  v.  IMuunilngdale, 

4&3. 
Western,  etc.,  R.  Co.  v.  Tarter,  122. 
Western,  etc.,  U.  Co.  r.  ll.iriiicll,  34.'>,:?01. 
Western,  etc.,  K.  to.  c.  Stanley,  401. 
Western,  etc.,  K.  Co.  r.  Strong.  •').5,'). 
Western,  etc..  It.  (;o.  r.  \V II, •.on,  .IS. 
Western,  etc.,  li.  Co.  v.  Young,  .")2(t. 
Western  Union  Tel.  Co.  r.  Ulanchard, 

Ml,  .W4. 
Western  Union  Tel.  Co.  r.  Fcnton,  .104. 
Western  Union  Tel.  Co.  r.  (iriswohl.  24. 
Wenlern  Union  Tel.  Co.  v.  Hyer,.5'.i3, .VM. 
WeHtcrn  Union  Tel.  Co.  v.  Wilson,  5'J3. 
Weston  r.  Klevatod  K.  Co.,  :!".t.1. 
Weston  t'.  Grand  Trunk,  etc.,  IJ.  Co.,  3.18. 
Wetherhec  r.   Klleh,  437. 
Weyniire  r.  Wolf,  41,  42. 
We>  mouth  v.  City  of  New  Orleans,  301. 
Whaile  V.  Lancaster  and  Yorka,  3:50. 
Whalen  v.  St.  Louis,  etc.,  U.  Co.,  401. 
Whaley  v.  IJarllett,  471. 
WlIAKTON  ON  ACKNCY,  2ft,  434. 

Wharton  on  .nkgi  kjknck,  21,22,  24, 
62.  OS,  7!>,  K4,  202,  215,  2.1.1,  20.1,  208,  201), 
273,  274,  270,  284,  2'.>2,  2'.I3,  2H5,  313,  327, 
3;{(i,  338,  340,  412,  413,  421,  422,  420,  441, 
440,  4.11.  457,  400,  402,  40;{,  407,  474,  517, 
520. 

Wiieelan  v.  Chicago,  etc.,  Ry.  Co.,  551. 

Wheeler  r.  Sa\vver,424. 

Wh.'.ler  r.  Towiisend,  r.OO. 

Wheeler  c.  Westpori,  M2. 

Wheelock  r.  Wheelwright.  211. 

Wheelwright  v.  Boston,  etc.,  K.  Co.,  408. 

Whelan  r.  Georgia,  etc.,  U.  Co.,  370. 

Whelun  r.   New  York,  etc.,  R.  Co.,  500, 

001. 

Whipple  V.  Kalrhaven,  321. 
Whipple  f.  Whitman, ••37. 
Whirley  r.  Whitman,  7«,  401,  515. 
While  ?•.  .\tlantlc(;on.  St.  \l.  Co.,  370. 
White  J-.  i;ond.  IXI. 
While  f.  Boston  &  A.  R.  Co.,  527. 
Whiter.  Boullon,  3<>7. 
White  r.  Chicago,  etc.,  Rv.  Co.,  SO. 
White  r.  Cincinnati,  etc.,  K.  Co.,  485. 
Whiter,  ('om'rs  of  Chowan,  145. 
White  r.  Concord  R.  Co.,  110,  121. 
While  r.  Dresser,  003. 


White  r.  Fort.  .148. 

White  f.  France,  79,  Ml. 

White  V.  (;.  W.   Ry.  Co.. 843. 

White  f.  Ulndley   Ixjcal  Board,  2M. 

White  r.  Ijing,4si. 

Whiter.  .MisHouri  ParHlr  It.  (  o.,  B7. 

Wfiilor.  .Muntgomery,  los. 

White  r.  I'hlllipx.  7o. 

White  V.  I'hlllipsion.  133. 

White  r.  tjuincv,  143. 

White  r.  Speltlguc,  .1.V). 

White  r.  W.  U.Tel.  Co.,  698. 

Whilukir  f.  Balniforth.  22'.». 

Whitelleld  v.   Despenser,  2i1.  440. 

Whitehead   r.   St.    Loum,   etc..    Ky.  Co., 

■.is:\,  .lis. 
Whilehehd  r.  Whitehead,  2.W. 
Whitehouse  r.  lilrininghum  Canal   Co., 

'.>2. 
Whltchonso  r    Fellowes,  140,  209. 
Whitely  r.  I'epper,  140. 
Whilemore  r.   Ilarldson,  413. 
Whllliild  I-.  Meridian,  .tr.t. 
WhlltleM  c.  Town  of  Carrollton,  3U0. 
Wliilford  r.  I'anama  Ry.  Co.,  662. 
Whiting  r.  Chicago,  .10. 
Whitney  r    l.owcll,  318. 
Whltnev  r.  .Marline,  204.  420. 
Whitney  i-.  Nat.  Bank,  60. 
Whitney  i-.  SimIUi,  2i^. 
Whiton  r.  Chleago,  elc.  R.  Co.,  .140. 
Whittaker  r.  Ciiv  of  Helena,  508. 
Whiltaker  r.  C<illln«,  420. 
Wliiltemore  r    'riiomaH,  14.1. 
Wliittier  I-.  C.  .M.  &  si.  V.  R.  Co.,  .128. 
White  Sewing  Mach.  Co.  f.  RIchtor,  34, 

500. 
Wichtrecht  r.  Fassnacht,  212. 
Wichita  Val.  Kv.  Co.  r.  Swcnson,  .360. 
W  ichita  »^  W.  U.  Co.  r.  Davis,  465,  801. 
Wiekware  r.  Bryan,  451. 
I    Wiediiier  r.  .New  York   Kl.  R.  Co.,63L 
Wier's  App<'«l,  0. 
Wigiiiore  I'  .lav,  .117. 
Wllliur  r.  lliihiiard,  13.3. 
Wllliv  r.  Midland  Kv.  Co.,  IP.U. 
W:leox  r.  Klrhinond  \  D.  U.  Co.,  5''7. 
Wilder  f.  .Maine,  etc.,  B.Co.,  110,  112,119. 
Wilder  i:  Manlev.  :'.8 
Wilds  r.  Brun.sw'iek  A  W   R.  Co.,  504. 
Wilds   r.  Hudson  Kiver  K.  Co.,  4t  u,  490. 

518. 
Wiley  r.  Brattlelioro  Bank.  44n. 
Wiley  V.  Ix>ng  Island  K.  (  o.,  .Ml 
Wilker.Mon  r   Corrlgan  C.  St.  Uy.  Co..  527. 
WllkiUK  I-.  Dav,  117. 
WilkiiiHon  r.  Drew,  .V^fl. 
Wilkinson  V.  Fairle,  74.  3>'.i,   4'<8. 
Wilkin-on  V.  ilollowav.  4,U. 
Willard  r.  Goodrich,  4  u;.      . 
Willard  f.  Siegel  (ias  Fixture  Co.,  4S7. 
Willard  r.  Sw..i'-on,  4«4. 
Willianis  I-.   BridgeH.  450. 
M  illlamsr.   Bruce.  4'.>«. 
Williams  r.  Camden  \  W.  Co.,  97. 
Willianis  I-.  Chicago,  etc..  It,  Co  ,50L 
Willliima  I.  Ciirrie.  .1<7. 
Wllliamt  I-.   K.liiiundi..  40. 
W!M,IA>IS  ON    r.XK.Cl  TOK«.  2S4. 
WilllnniH  r.  Fresno.  C.  41.  Co.,  «4. 
William-  r-.  «H-.M'.  411. 
Williams  IV  t;il)hH.4:l.s. 
Williams  f.  <;rnnl.  :i3'. 
William'^  r.  tircaly.M. 


(3130 


TABLE    OF   CITATIONS. 


References  are  to  Pages. 


•SVllliamsr.  G.  W.  Ry.  Co.,  30,  295. 

Williams  v.  Groucott,66. 

Williams  f.  Hay,  6. 

Williams  v.  Island  City  M.  &  M.  Co.,  592. 

AVilliams  r.  Jones,  200. 

AVIlliimstJ.  LeBar,  423. 

Williams  f.  Louisville  I.  S.  of  Reform, 

208. 
AVilliams  v.  McKay,  324. 
Williams  v.  Moran,  126, 128. 
Williams  v.  Mostyn,449,  453. 
"Williams  r.  Reynolds,  356. 
Williams  v.  Richards,  63. 
Williams  v.  Ro'-e,  449. 
Williams  V.  Stillwell  145. 
AVllliams  V.  Texas,  etc.,  R.  Co.,  518. 
AVilliams  v.  Vanderbilt,  42. 
AVilliamson  v.  Oleson,  94. 
Wlllington  V.  Gresson,  138. 
Willis  V.  Grand  Trunk  R.  Co.,  344. 
Willis  r.  Long  Island,  etc.,  R.  Co.,  376, 

378. 
Willis  V.  Lynn,  etc.,  R.  Co.,  377. 
Willis  V.  Mo.  P.  R.  Co  ,555. 
Willmott  V.  Corrigan   Con.  St.  Ry.  Co., 

377. 
Willock  i\  Pennsylvania  R.  Co.,  345. 
Willoughby  v.  Horridge,  2S1,  392. 
Wills  r.  Lvnn  &  Boston  R.  Co.,  52. 
AVllmst'.  jchs,  9,  10. 
Wilson  V.  n.  &  O.  Ry.  Co.,  407. 
Wilson  V.  Citv  of  Troy,  301. 
Wilson  V.  City  of  Wheeling,  141,  142,218. 
Wilson  V.  Halifax,  295. 
AVilson  V.  Hamilton,  351. 
Wilson  V.  Howard,  426. 
Wilson  I'.  Jefferson,  145. 
AVilson  V.  London,  etc..  Co.,  334,  3.56. 
Wilson  V.  Lord  IJnry,  256,  324,  325. 
Wilson  V.  New  Bedford,  97,  275. 
Wilson  V.  Newberry,  92. 
Wilson  V.  New  York  Central,  etc.,  R.  Co., 

345,  352. 
WMIson  V.  Northern  Pac.  R.  Co.,  39,  380, 

484,  485,  486. 
Wilson  V.  Peto,  253. 
Wilson  V.  Russ,  427. 
Wilson  V.  Susquehanna  Tp.  Co.,  485. 
Wilson  r.  Town  of  Spafford,  112. 
Wilson  V.  Town  of  Granby,  146. 
Wilson  V.  Tucker,  438. 
Wilson  V.  Wartdell,  70,  100. 
Wilson  r.  Wadlelgh,43.5. 
Wilson  t'.  Wheeling,  589. 
AVilson  V.  Williams,  453. 
Wilton  r.  Middlesex  R.  Co.,  384. 
Wilt-er.  State  Board  Bridge  Co.,  202. 
Wllisei'.  Town  of  Tilden,  137 
Winch  V.  Conservators  of  Thames,  299. 
Wind  J'   Fifth  Nat.  Bank,  442. 
\v  Insrate  v  Mechanics'  Bank,  452. " 
Winn  r.  Abclcs,  6.  10. 
Winn  r.  Lowell,  503. 
Winn  V.  l{utl!ind.30t. 
AVinnei-.  Illinois  Central  R.  Co.,  359. 
Winnegari;.  Central  Passenger  Ry.  Co., 

20(;. 
AVinner  v.  Lnthrop,42fi. 
Winnt  V.  International  &  G.  N.  R.  Co., 

.540. 
Wlnship  r.  Enfield,  143,474. 
Wlnlerhoit.iii  v.  I.ord  Derby.  73, 134. 
Wlnterbottom  v.  U  rii;hi,  11,  18. 
Winters  v.  Hannibal  11.  Co.,  03. 


Winters  v.  Kansas  City  Cable  Ry.  Co., 

515. 
Wise  i\  Jefferis,  454. 
Wiseman  i'.  Booker,  110. 
AVlsner  r.  Barber,  592. 
Witham  r.  Portland,  307. 
Withers  v.  North  Kent  Ry.  Co.,  29,  390. 
Wohlfahrtr.  Bcckert,  13,  286. 
Wolf  V.  Ki  I  Patrick,  82,  103, 106,  223,  810. 
Wolf  V.  Summers,  362. 
Wolf  V.  W.  U.  Tel.  Co.,  594. 
Wolff  Mfg.  Co.  V.  Wilson,  487,  603. 
Womack  v.  Centr.al  K.  &  B.  Co.,  550. 
Wood  V.  Devins,  364. 
Wood  V.  Finnis,  462. 
Wood  V.  Indian  School  District,  215. 
AVood  r.  Kansas  City  R.  Co.,  121. 
Wood  V.  Lake  Shore,  etc.,  R.  Co.,  381. 
AVooD  ON  Master  &  Sekvant,  212. 
AVood  V.  McClure,  265. 
AVood  V.  Mcars,  138, 141. 
AVOOD  ON  Railways,  336,  358,  363,  364, 

374,391,551. 
Wood  V.  Remick,  60. 
AVood  V.  Tipton  Co.,  145. 
AA'ood  V.  AVand,  96. 
AA''ood  i\  AVood,  430. 
Wood  River  Bank  v.  First  Nat.  Bank,  441, 

444. 
Woo  Dan  t'.  Seattle  E.  Ry.  &  P.  Co.,  3*6. 
AVoodard  v.  City  of  Boscobel,  319,  599. 
Wooden  v.  AVestern  N.  Y.,  etc.,  R.  Co., 

555. 
Woodgatei'.  Knatchbnll,452. 
AA'oodger  v.  Gt.  W.  Ry.  Co.,  357. 
AA^oodman  v.  Hubbard,  211. 
Woodman  v.  Metropolitan  R.   Co.,  223, 

530. 
W^oodman  I'.  Nothingham,143. 

AA'^oodman  v.  Pitman,  479. 

Woodman  v.  Tufts,  105. 

Woodruff  V.  Bowen.  77. 

Woodruff  r.  Painter,  60. 

Woods  V.  Devins,  363. 

Woods  r.  Naumkeag  Steam  Cotton  Co., 
106. 

Woodward  v.  Aborn,  48,  92. 

Woodward  V.  Michigan,  etc.,  R.  Co.,  555. 

AVoodward  Iron  Co.  v.  Jones,  494. 

AVoolwlne  v.  Chesapeake  &  O.  R.  Co., 76. 

Woodworth  V.  Mor.'sc,  411,  412. 

AVoolery  v.  Louisville,  etc.,  Ry.  Co.,  486. 

Woolf  V.  Chalker,  125, 128, 131,  282. 

Woolfolk  V.  Macon,  etc.,  R.  Co.,  121, 

AVoolsey  v.  ChicMgo,  B   &  B.  R.  Co.,  388. 

Wooten  V.  Dawkins,  80. 

Woram  r.  HoblP,  105. 

Worden  v.  Humeston  &  S.  R  Co..  5.50. 

Workman  v.  Great  Northern  Ry.  Co.,  28, 
43.  .587,  591,599. 

Wormley  v.  Gregg,  127,  282. 

Wonnleyr.  Wormley,  264. 

AVorthen  i'.  Love,  125. 

AVorthingtonr.  Wade,  288. 

AVrlght  V.  Chicago  &  N.  AV.  Ry.  Co.,  49. 

AVrightt'.  Dally,  433.  ^  ^ 

AVright  V.  Illinois,  etc..  Telegraph  Co., 
491. 

AVright  V.  London  N.  AV.  Ry- Co.,  281. 

AVright  V.  London  Omnibus  Co.,  21.i,  .^»». 

AVright  v.  Midland  Kv.  Co.,  371,  382,  525. 

AVright  V.  Pearson,  132. 

AVritrht  v.  St.  Cloud,  315. 

AVright  V.  Syracuse,  etc.,  R.  Co.,  97. 


TAIJLE   OF    CITATIONS. 


G61 


Keferencea  jire  to  Pokch. 


Wright  r.  WhcoliT,  452 

Wvatt  r.  Citlzoiis.  etc..  It  Co.,  M. 

Wvnll  I',  (i.  \V.  IJv.  Co.,481,4»7. 

Wyl.l  r.  lHikf<ird,':i.«l. 

Wvlie  f.  lllrcli.  Ifi.!.  4M. 

Wyllie  f.  Hdliiur,  JU. 

Wyiiinii  1'.  .Joi)e8, '.'.'>8. 

Wyiiuiii  r.  Lfavltt,(J<)3. 

W  yinan  c.  I'l-nobHCOt,  etc.,  R.  Co.,  372. 

Wvmore  f.  MaliHHkn  (;(>UDty,51S. 

Wvnn  V.  (  Itv  A  .^.  :iv.  Co.,  520. 

■Wyunc  v.  I'ruirle,  4:50. 


Y. 

Yale  Gas  Slono  Co.  r.  Wilcox,  3.33. 

Yancy  r.  Wabash, etc.,  Uv.  (;o.,.^02. 

VarnuU  f.   ."^t.   Louts,  etc',  1£.  Co..  51,  .VKJ. 

Yarnell  r.  Kaii.iaH  City,  etc.,  U.  Co.,  .'I'JU. 

YarHborouKli  r.  Ituiik  of  Kngland,  2'.*3. 

Yal08  r.  Laii^liiK.  44;),  451. 

Vales  /■.  Whyte,  6S6. 

Vearance  v.  .Salt  I.jikc  City,  SWi. 

Yearn  v.  Wllli«iiin,.Vt. 

Yconiuiib  f.  Coutra  Costa,  etc.,  Xav.  Co., 

Yoakam  i-.  Dunn,  5'JO,  697. 


Yordy  v.  MnrRhali  »  ■mntv,  iM. 
York  f.  .Maine  «;.  I(.  Co.,  51. 
YouUe  f.  t  lutid,  'J.');. 
YoiiiiK  ('.  Itankier  li.  Co.,  06. 
Voting  V.  CliarU-hion,  l:i7. 
Vutiiigf.  City  of  KuiiHan, 301,304. 
VouiiK  ('■  Coiiiielly.  452. 
Young  r.  Davln,  134. 
Young  I'.  <irote.  441. 
Young  r.  Harvey,  •'.",  t*2. 
Young  «•.  rennf-ylvanlu  K    Co.,  206. 
Young  I-.  .Maoun'.  42'.,  4'.'.'. 
Young  r.  New  Haven,  142. 
Young  I-.  Watcrvillc,  3ur>. 
Young  r.  W.  U.  Tel.  Co.,  594. 

z. 


Zelglcr  f  Com.,  453. 

Zenip  r.  Wilmington,  etc.,  K.  Co..  877. 

Zeltler  r.  Atlanta,  111*;. 

/.Iinmernian  v  Hannibal,  etc  ,  U.  Co.,502. 

ZiminerH  r.   New  York,  etc..  It.   Co.,  352. 

Zinc  V.  Kraullnllc  Co.. ".». 

ZoeblHch  r.  Tarbell.  V',,  270. 

Zopn  V.  I'oHlal  T.  C.  Co.,  35. 

Zousb  V.  Chesapeake  &  O.  Uy.  Co.,  355. 


INDEX. 


References  are  to  Pages. 

ABATEMENT. 

Of  action  for  injury  causing  death  by  death  of  wrong-doer,  547. 
ACCIDENT. 

Must  be  connected  with  defendant,  524. 

Res  ipsa  loquitur,  522-534. 

Cases  resting  in  contract  and  those  not  resting  in  contract,  62C-533 
(Ed.  n.). 

Happening  of  accident  prima  facie  evidence  of  negligence,  62G,  527 
(Ed.  n.). 

When  no  contract  relation  exists,  529  (Ed.  n.),  633  (Ed.  n.). 

ACT.     Sec  Statute. 

Employers'  Liability  Act,  225,  243  (Ed.  n.). 
Railway  and  Canal  Traffic  Act,  349-351. 

ACTION. 

For  injuries  causing  death,  535. 
See  Injuries  Causing  Death. 
For  loss  of  support,  538,  541  (Ed.  n.). 

ACT  OF  GOD. 

Defense  for  injury,  28. 

Common  carrier  not  liable  for,  333,  336  (Ed.  n.). 

Goods  to  be  transported  by  carrier  delayed  through  its  negligence, 
and  afterwards  destroyed  by  extraordinary  flood,  47  (Ed.  n.). 

Property  exposed  to  flood  by  wrongful  act  concurrent  In  point  of 
time,  48  (Ed.  n.). 

Unforeseen  cause  combining  with  defendant's  unlawful  act  In  pro- 
ducing injury,  41  (Ed.  n.). 

ADMIRALTY. 

Rule  of  damages  in  case  of  collision  between  ships,  490. 

AGENT. 

Attorney  and  solicitor  liable  for  negligence  of,  429,  433  (Ed.  n.). 
Patent  agent  liable  for  negligence,  440. 

(Gfi3) 


664  INDEX. 

References  are  to  Pages. 
AGGRAVATION. 

Of  injury  by  reason  of  tendency  to  disease,  no  defense,  43  (Ed.  n.). 
Unskillful  treatment  of  physician  or  surgeon,  39  (Ed.  n.). 
Plaintiff's  act  aggravating  damages,  490,  491  (Ed.  n.),  493  (Ed.  n.). 
Defendant  liable  for  whole  damage  unless  plaintiff's  negligence  is 
separable,  491,  492. 

ALABAMA. 

Employer's  liability  statutes,  243  (Ed.  n.). 

Comparative  negligence  denied  in,  463  (Ed.  n.). 

Action  for  injuries  causing  death,  537  (Ed.  n."),  556  (Ed.  n.). 

Burden  of  proof  on  defendant  to  establish  plaintiff's  contributory 

negligence,  470  (Ed.  n.). 
Negligence  of  parent  not  imputable  to  child,  517  (Ed.  n.). 
Negligence  per  se,  49. 
Common  carrier  may  limit  liability,  344  (Ed.  n.). 

ALIGHTING  FROM  MOVING  TRAIN,  54  (Ed.  n.),  378  (Ed.  n.). 
When  train  overshoots  station,  54  (Ed.  n.),  380  (Ed.  n.). 
Jumping  from  train  to  save  others  distress  on  account  of  absence, 

54  (Ed.  n.). 
Jumping  from  street  car,  54  (Ed.  n.). 
Alighting  on  wrong  side  of  track,  54  (Ed.  n.;. 
Or  at  a  place  not  designed  for  passengers,  55  (Ed.  n.). 
When  passenger  alights  to  avoid  being  carried  past  his  station,  379 

(Ed.  n.),  399. 
When  act  is  done  under  suggestions  or  instructions  of  company's 

servants,  379  (Ed.  n.),  380  (Ed.  n.). 
Alighting  in  spite  of  warning,  381  (Ed.  n.). 
On  a  dark  night  and  against  the  advice  of  conductor,  381  (Ed.  n.) 
On  a  dark  night  by  express  invitation,  399  n. 
When  train  stops  at  a  water  tank  or  place  other  than  station,  381 

(Ed.  n.). 
Passenger  not  justified  in  alighting  at  calling  out  of  station,  381 

(Ed.  n.),  399. 

ANIMALS. 

Neglect  of  duties  by  owners  of,  123,  282-285. 

Keeping  animal  after  knowledge  of  its  mischievous  disposition,  123. 

Owner  must  prevent  animal  from  trespassing,  124. 

Whether  he  is  liable  for  trespasses  by  dogs,  cats,  fowls,  etc.,  quosre, 

124. 
Degree  of  care  to  be  exercised  in  keeping  wild  animals,  126,  282. 
Animals  mansuetce  naturcc —  owner  liable  after  notice  of  mischievous 

disposition,  126  (Ed.  n.). 
Notice  must  be  averred  and  proved,  127  (Ed.  n.),  128. 


INDKX.  t)65 

Ueferonccs  uro  to  I'liL'ts. 

ANIMALS  —  Continued. 

Knowledge  of  agent  of  vicious  habits  of  dog  Is  knowledge  of  prin- 
cipal, 127  (Ed.  u.). 

Notice  of  mischievous  habits  on  a  single  occasion  suQlclent  to  charge 
owner,  127  (Ed.  n,). 

—  Dugs  —  One  may  keep  a  dog  which  ho  knows  to  be  savage,  to 
defend  his  house — and  is  only  lial)le  for  negligence  in  kevpiug 
him,  131. 

Proof  of  gcientrr,  131  (Ed.  n.),  132. 

Killing,  injuring  or  worrying  sliccp,  132  (Ed.  n.). 

Infectious  animals  —  .Mere  keeping  of  not  negligence  per  se,  130. 

Infectious  animals  trespassing  on  lands  of  another,  130  (Ed.  n.). 

—  Contributory  negligence,  131  (Ed.  n.). 

On  the  pari  of  a  child  no  defense,  129  (Fid.  n.^. 

One  irritating  dog  and  Is  bitten  In  consequence  can  not  recover,  129 

(Ed.  n.). 
Permitting  mare  to  pasture  in  field  with  bull,  128  (Ed.  n.). 
Omi-sion  to  repair  fence  whereby  bull  escaped  into  pa.sture,    128 

(Ed.  n.). 
That  person  injured  is  a  trespasser  no  defense  where  negligence  is 

shown,  128  (Ed.  n.). 
Ox  driven  through  streets,  285. 
Tethering  vicious  bull  on  land  over  which  public  Is  accustomed  to 

pass,  128  (Ed.  n.). 
Where   animals  arc   infected   with  disease  by  other  animals,  that 

owner   did    not   apply  the    proper  remedy  no  defense,   130,   131 

(Ed.n). 

—  Damages  —  For  killing  or  wounding  sheep,  132  (Ed.  n.). 
Scienter  —  Proof  of,  132,  284. 

In  respect  to  bulls,  rams,  monkeys,  284,  285. 

Whether  action  can  be  brought  against  all  of  the  owners  of  several 
dogs  who  at  onetime  kill  and  wound  sheep,  133. 

APPORTION.MENT  OF   DAMAGES. 

Damages  caused    by  the  negligence  of    defendant    and    increased 

through  the  negligence  of  plainlifif,  91  (Ivl.  n.). 
Hecoverable  up  to  the  time  when  contributory  negligence  began  to 

affect  the  result,  91  (Ed.  n.). 
When  the  negligence  of  plaintiff  is  capable  of  a  distinct  separation 

from  that  of  defendant,  42,  43,  491,  492. 

ARIZONA. 

Comparative  negligence  denied  in,  403  (Ed.  n.). 
Action  for  injuries  causing  death,  550  (Ed.  n.). 
Burden  of  proof  on  defendant  to  establish  plalntl^s  contributory 
negligence,  470  (Ed.  n.). 


666  INDEX. 

References  are  to  Pages. 

ARKANSAS. 

Comparative  negligence  denied  in,  463  (Ed.  n.). 

Burden  is  on  defendant  to  prove  plaintiff's  contributory  negligence, 

470  (Ed.  n.). 
Action  for  injuries  causing  death,  537  (Ed.  n.),  557  (Ed.  n.). 
Common  carriers  may  limit  liability,  344  (Ed.  n.). 

ARM. 

Projecting  from  car  window,  52  (Ed.  n.),  378  (Ed.  n.). 

Jolting  of  car  throwing  arm  out  of  window,  53  (Ed.  n.),  378  (Ed.  n.). 

ARMY. 

Officers  of,  not  liable  for  negligence  of  subordinates,  450  (Ed.  n.). 

ASSAULT. 

Committed  upon  passengers  by  railroad  employes,  206  (Ed.  n.),  207 

(Ed.  n.). 
By  strangers,  207  (Ed.  n.). 

Charitable  corporation  not  liable  for  assault  committed  by  one  of  its 
officers  on  inmate,  208  (Ed.  n.) 

ATTORNEYS. 

Neglect  of  duties  by,  427. 

Liable  for  negligence  of  agents,  429,  433  (Ed.  n.). 

Clerks,  429,  433  (Ed.  n.). 

Partners,  429,  431  (Ed.  n.),  433  (Ed.  n.). 

Not  liable  for  negligence  of  associate  counsel,  433  (Ed.  n.). 

Liable  though  services  are  rendered  gratuitously,  431,  433. 

Acting  without  authority,  429  (Ed.  n.),  430  n. 

Liable  for  ordinary  neglect,  428  (Ed.  n.),  429  (Ed.  n.). 

Do  not  guarantee  success  of  case,  428  (Ed.  n.). 

Not  liable  for   errors  of    opinion  on   doubtful  points  of  law,  428 

(Ed.  n.). 
Not  liable  to  third  persons  for  negligence  in  examining  titles,  12 

(Ed.  n.),  430  (Ed.  n.). 
Not  bound  to  move  for  a  new  trial  on  point  of  law,  434  n. 
Liable  for  delaying  to  commence  suit  until  claim  is  barred  by  statute 

of  limitations,  429  (Ed.  n."). 
Failing  to  record  mortgages,  429  (Ed.  n.). 
Delaying  filing  of  pleadings,  429  (Ed.  n.). 
Loaning  money  on  worthless  securities,  429  (Ed.  n.). 
Omitting  to  insert  in  writ  full  amount  of  client's  claim,  429  (Ed.  n.). 
Disobeying  client's  instructions,  429  (Ed.  n.). 
Failing  to  exercise  care  in  examination  of  titles,  429  (Ed.  n.). 
Prosecuting  an  action  too  soon,  430  (Ed.  n.). 
Delaying  bringing  an  action  until  it  is  too  late,  430  (Ed.  n.). 
Neglecting  to  attend  to  trial  and  plead  defense,  430  (Ed,  n.). 


iM>i:.\.  667 

Keforoncos  aro  to  rnt^es. 

ATTORNFA'S  —  Continnrd. 

"  Omission  of  attorney  and   personal  Inattention    of    Bultor,"    430 

(Ed.  n.). 
Neglect  of  attorney,  neglect  of  client,  480  (Ed.  n.)- 
Improperly  dismissing  suit,  430  (Ed.  n.). 
Negiecting  to  enter  up  judgment,  431  (Ed.  n.). 

Entering  satisfaction  oi  jiidguu-nt  williout  full  payment,  431  (Ed.  n.) . 
Suffering  judgment  to  go  Ijy  default,  i'M  (Kd.  n.). 
I        Delaying  delivery  of  execution  to  otllccrx,  431  (Ed,  n.). 

Not  seasonably  suing  out  scire  facias  against  ball,  431  (Ed.  n.). 
Not  giving  notice  of  iusullUieucy  of  l)ail,  431  (Ed.  n.). 
Dissolution  of  firm  will  not  release  from  liability,  432  (Ed.  n.). 
Though  negligence  occurs  after  dissolution,  432  (Ed.  n.). 
—  Money  collected  —  not  liable  for  until  demand  and  refusal  to  pay 
I  over,  432  (Ed.  n.). 

When  demand  Is  dispensed  with,  432  (Ed.  n.). 

Action  for  fees,  432  (Ed.  n.). 

Cannot  recover  for  services  which  through  neglect  prove  of  no  value, 

432  (Ed.  n.). 
Nor  when  they  retain  money  until  they  are  sued  for  it,  432  (Ed.  n.). 
Withdrawal  from  case  on  retainer  of  objectionable  associate  counsel, 

recovery  pro  tanto,  42'J  (Ed.  n.). 
Power  to  receive  money,  433  (Ed.  n.),  436. 
May  receive  amount  of  judgment  recovered  by  client  and  discbarge 

it,  433  (Ed.  n  ). 
Not  authorized  to  receive  anything  but  money,  433  (Ed.  n.). 
May  receive  partial  payments,  433  (Ed.  n.),  435. 
May  consent  tliat  judgment  obtained  by  default  by  client  may  be 

vacated,  435  (Ed.  n.). 
May  sue   out  execution   and  cause   defendant  to  be  arrested,   435 

(Ed.  n.). 
Have  no  authority  to  discharge  judgment  except  upon  payment  of 

amount  in  full,  436  (Ed.  n.). 
No  implied  power  to  stay  execution,  43G  (Ed.  n.). 
To  employ  assistant  counsel,  434  (Ed.  n.). 
Or  substitute  another  in  their  place,  434  (Ed.  n.). 
To  release  sureties  of  client's  debtor,  436  (Ed.  n.). 
Or  property  levied  on  under  execution,  436  (Ed.  n.). 
To  discharge  defendant  from  execution,  436  (Ed.  n.). 
Without  payment  of  debt  in  full,  436  (Ed.  n.). 
Have  no  right  to  compromise  suit,  434,  435,  436  (Ed.  n.). 
Exceptions,  437  (Ed.  n.). 
Have  authority  to   submit  cause  to  arbitration,  437    (Ed.  n.),  384 

(Ed.  n.). 
Services  at  an  end  when  judgment  Is  recovered,  434. 


668  INDEX. 

Refereuces  are  to  Pages. 

ATTORNEYS  —  Continued. 

When  judgment  is  satisfied,  434  (Ed.  li.). 

When  services  do  not  terminate  with  conclusion  of  case  in  lower 

court,  435  (Ed.  n.). 
Terminated  by  death  of  client,  435  (Ed.  n.). 

AWNINGS. 

Municipal  corporation  liable  for  injuries    caused    by  fall    of,  305 

(Ed.  n.)- 
Owner  liable,  305  (Ed.  n.). 

BAGGAGE. 

See  Railway  Companies,  361,  363  (Ed.  n.). 

BAILMENT. 

Bailee  for  hire,  57,  58  (Ed.  n.). 
Use  of  thing  bailed,  57,  58  (Ed.  n.)- 

BANKERS. 

Neglect  of  duties  by,  440,  442  (Ed.  n,). 

Must  exercise  more  than  ordinary  care,  441,  442  (Ed.  n.). 

As  gratuitous  depositaries  liable  for  gross  negligence,  440  7i.,  456. 

Negligently  refusing  to  cash  check,  441. 

Paying  forged  checlis,  441,  442  (Ed.  u.). 

Liability  of  bank  sending  paper  to  another  bank  for  collection,  443 

(Ed.  n.). 
For  negligence  of  notary,  443  (Ed.  n.),  444  (Ed.  n.). 
Contributory  negligence,  441,  442  (Ed.  n.). 
Duty  of    depositor  to    examine    pass-book  and  report  errors,  441 

(Ed.  n.). 
Discounting  bills,  442. 
Disclosing  state  of  customer's  account,  444, 

BLASTING. 

Liability  of  municipal  corporation  for  injury  by  blasting  in  streets, 
805  (Ed.  n.). 

BLINDNESS. 

No  excuse  for  contributory  negligence,  503  (Ed.  n.). 

BOARDING-HOUSE  KEEPERS. 

Not  held  to  same  degree  of  care  as  innkeepers,  418  (Ed.  n.). 

BOARDING  MOVING  TRAIN. 

Negligence  per  se,  53  (Ed.  n.),  375  (Ed.  n.). 
Getting  on  by  invitation  of  brakeman,  53  (Ed.  n.). 
By  permission  of  engineer,  53  (Ed.  n.). 

Where  train   was  moving  slowly  and  did  not  stop  at  station,  376 
(Ed.  n.). 


I 


Referoiioos  are  to  I'affeH. 

BOARDING  MOVING  TKAIN  —  (JotUimml. 

Or  passeuger  was  directed  by  passenger's  servants  to   make    tho 

attempt,  37C  (Ed.  n.). 
Whether  train  stopped  long  enough  for  passenger  to  get  on  may 

affect  the  question,  37G  (Ed.  u.). 

BREACH  OF  DUTY. 

Liability  of  vendor  for  injury  to  third  party  for  breach  of,   II,  12 

(Ed.  n.). 
Selling  gun  which  vendor  knew  to  be  dangerous,  11. 
Selling  pernicious  hair  dye  to  man,  vendor  knowing  hl.s  wlf<'  would 

use  it,  11. 
Selling  dangerous  goods,  13  (Ed.  n.). 
Where  a  workman  in  the  employ  of  a  ship  painter  was  injured  by  the 

fall  of  a  defective  staging  supplied  by  a  dock  owner,  under  a  con- 
tract with  the  ship  owner,  the  dock  owner  was  held  liable,  12,  14. 
BRIDGE. 

Bridge  should  be  kept  in  suitable  repair,  143,  144  (Ed.  n.). 

Must  be  constructed  so  as  to  resist  floods,  144. 

Provided  with  suitable  railings,  143. 

Railway  bridges  over  highways,  143. 

Draw  bridges  should  be  properly  constructed,  143. 

Municipal  corporations   liable    for    injuries    caused    by  defects   in 

bridges  within  their  limits,  144  (Ed.  n.). 
Though  in  process  of  repair  by  independent  contractor,  144  (Ed.  n.). 
I      City  not  bound  to  erect  barriers  or  station  watchmen  for  protection 

of  young  children  playing  about  swing  bridges,  145  (Ed.  n.). 
Counties  not  bound  to  repair  bridges  in  the  absence  of  statute,  145 

(Ed.  n.),  140  (Ed.  n.). 
This  duty  is  imposed  in  some  States  upon  counties,  in  others  upon 

townships,  14.5  (Ed.  n.). 
Ordinary  care  required  of  counties  In  the  construction  and  repair  of 

bridges,  140  (Ed.  n.). 
A  town  is  not  bound  to  keep   its   bridges  absolutely  safe  against 

extraordinary  loads,  140  (Ed.  n.). 
Knowledge  of  unsafe  condition,  140  {VA.  n.). 
Walking  on  side  having  no  birrler,  147  (Ed.  n.). 
Walking  on  bridge  so  defective  as  to  be  practically  Impassable,  147, 

(Ed.  n.). 
Recklessly  driving  over,  147  (Ed.  u.). 

BRIDGE  CONTRACTOR. 

Not  liable  for  injuries  to  third  person  by  defective  construction  of 
bridge,  13  (Ed.  n.) 
BROKER. 

Neglect  of  duties  by  stock  broker,  444. 


670  INDEX. 

References  are  to  Pages. 

BUILDING. 

Right  to  support  of,  5,  6,  65,  70  (Ed.  n.). 
See  Support. 

BURDEN  OF  PROOF. 

In  action  for  damages  by  railway  fires,  87  (Ed.  n.). 
Burden  of  proving  negligence  —  Plaintiff  must  show  negligence  on 
the  part  of  the  defendant  and  that  he  was  in  the  exercise  of  due 
care  himself  the  rule  in,  472  (Ed,  n.). 

In  Indiana,  472  (Ed.  n.). 

In  Iowa,  472  (Ed.  u.). 

In  Louisiana,  472  (Ed.  n.). 

In  Maine,  472  (Ed.  n.). 

In  Massachusetts,  472  (Ed.  n.). 

In  Michigan,  472  (Ed.  n.). 

In  Mississippi,  473  (Ed.  n.). 

In  North  Carolina,  473  (Ed.  u.). 

In  Oregon,  473  (Ed.  n.). 
The  burden  of  proof  is  on  the  defendant  to  establish  plaintiff's  con- 
tributory negligence  the  rule  in  the  United  States  Supreme  Court, 
470  (Ed.  n.). 

In  Alabama,  470  (Ed.  n.). 

In  Arizona,  470  (Ed.  u.). 

In  California,  470  (Ed.  n.). 

In  Colorado,  470  (Ed.  n.). 

In  Dakota,  470  (Ed.  n.). 

In  District  of  Columbia,  470  (Ed.  n.). 

In  Georgia,  470  (Ed.  n.). 

In  Kansas,  471  (Ed.  n.). 

In  Kentucky,  471  (Ed.  n.). 

In  Maryland,  471  (Ed.  n.). 

In  Minnesota,  471  (Ed.  n.). 

In  Missouri,  471  (Ed.  n.). 

In  Montana,  471  (Ed.  n.). 

In  Nebraska,  471  (Ed.  n.). 

In  New  Hampshire,  471  (Ed.  n.). 

In  New  Jersey,  471  (Ed.  n.). 

In  Rhode  Island,  471  (Ed.  n.). 

In  South  Carolina,  471  (Ed.  n.). 

In  South  Dakota,  471  (Ed.  n.). 

In  Texas,  471  (Ed.  ii.). 

In  Virginia,  471  ^Ed.  n.). 

In  Washington,  472  (Ed.  n.). 

In  West  Virginia,  472  (Ed.  n.). 

In  Wisconsin,  472  (Ed.  n.). 
In  Federal  Courts.  472  (Ed.  n.). 


I 


iNDKx.  <;7l 

Kol'oreuces  ar«'  to  I'ajjps. 

BURDEN  OF  PROOF  —  Continued. 

In  U.  S.  Supreme  Court,  47l'  (Kd.  n.). 

Rule  in  New  York,  473  (Kd.  n.). 

Rule  now  In  Pennsylvania,  474  (Ed.  n.)- 

In  Ohio,  474  (Ed.  n.). 

Decisions  both    ways    in  Connecticut,  Illinois  and    Vermont,  4  73, 

(Ed.  n.),  474  (Ed.  n.). 
When  plaintiff's  case  raises  an  inference  of  contributory  negligence, 

474  (Ed.  n.). 
When  court  may  direct  a  non-suit,  474  (Ed.  n.). 

BURGLARS. 

One  may  protect  his  shop  from,  by  setting  up  sprln*;  i;na»,  mi  n. 

BUSINESS  HOUSES  AND  GROUNDS. 

Degree  of  care  to  be  exercised  toward  persons  coming  upon,  70,  72 
(Ed.  n.),  277. 

BUTTERFIELD  v.  FORRESTER,  460  (Ed.  n.),  47G,  477. 

CALIFORNIA. 

Comparative  negligence  obtains  in,  463  (Ed.  n.). 

Railway  companies  must  provide  safe  road-bed  and  machinery,  195 

(Ed.  n.). 
Actions  for  Injuries  causing  death,  537  (P]d.  n.),  558  (E(\.  n.). 
Construction  of  statutes  affecting  employer  and  employe,  1.'44  (K<1.  n.). 
Burden  of  proof  on  defendant  to  establish  plaintiff's  contributory 

negligence,  470  (Ed.  n.). 
Negligence  of  parent  imputable  to  child,  517  (Ed.  n.). 

CAMPBELL'S  (LORD)  ACT.     See  Injuries  Causing  Dkatii. 

CANAL  COMPANY. 

Must  see  that  its  docks,  etc.,  are  properly  constructed,  147. 
Injuries  to  adjoining  lands  by  overflow  of  canal;  liability  for  m-ull- 

gcnce,  147. 
Not  bound  to  fence  canal  towing  path,  148. 

CARE— DEGREE  OF.     See  Ori>inaky  Cark;    More  than    Okih.nahy 
Cark  ;  Lkss  than  Ordinary  Cark. 

Due  care,  483  (Ed.  n.). 

CARRIAGE.     See  Railway  Companiks. 

CARRIAGE  OF  GOODS.     See  Railway  Companies. 

CARRIERS. 

See  Railway  Companies,  333-388. 

SeeST\GK  Coach,  3f)2. 

SeeSLKKinsc,  Cak  Company,  401  (Ed.  n.)-411  (Kd.  n.). 


672  INDEX. 

References  are  to  Pages. 

CATTLE. 

See  Stock,  104-109. 
See  Animals,  110,  282. 
See  Fence,  106-123. 

CATTLE  GUARDS. 

Railway  companies  required  by  statute  to  construct  at  highway  and 
farm  crossings,  114  (Ed.  n.),  115  (^Ed.  n.). 

CHANGE  OF  GRADE. 

Consequential  damages  caused  by,  301  (Ed.  n.). 

CHILDREN. 

When  trespassers,  cannot  recover,  76  (Ed.  n.). 

Otherwise  where  the  premises  are  attractive,  77  (Ed.  n.). 

Rule  of  contributory  negligence  does  not  apply  to  children  of  tender 

years,  513. 
Imputed  negligence  —  Negligence  of  parent  permitting  child  to  go 

upon  highway  unaccompanied,  514  (Ed.  n.),  617  (Ed.  n.). 
Bars  recovery  in  case  of  injury. 

In  California,  514  (Ed.  n.). 

In  Indiana,  514  (Ed.  n.). 

In  Kansas,  514  (Ed.  n.). 

In  Maine,  514  (Ed.  n.). 

In  Maryland,  514  (Ed.  n.). 

In  Massachusetts,  514  (Ed.  n.). 

In  Minnesota,  514  (Ed.  n.). 

In  New  York,  514  (Ed.  n.). 
Does  not  bar  a  recovery 

In  Alabama,  514  (Ed.  n.). 

In  Arkansas,  514  (Ed.  n.).  « 

In  Connecticut,  514  (Ed.  n.). 

In  Georgia,  514  (Ed.  n.). 

In  Illinois,  514  (Ed.  n.). 

In  Iowa,  515  (Ed.  n.). 

In  Louisiana,  515  (Ed.  n.). 

In  Michigan,  515  (Ed.  n.).  *  ^ 

In  Mississippi,  515  (Ed.  n.). 

In  Missouri,  615  (Ed.  n.). 

In  Nebraska,  515  (Ed.  n.). 

In  New  Hampshire,  515  (Ed.  n.). 

In  New  Jersey,  515  (Ed.  n.). 

In  North  Carolina,  515  (Ed.  n.). 

In  Ohio,  515  (Ed.  n.). 

In  Pennsylvania,  515  (Ed.  n.). 

In  Tennessee,  515  (Ed.  n.). 

In  Texas,  515  (Ed.  n.). 


iNUKx.  (573 

References  are  to  I'ages. 

CUILDREN  —  Continued. 

In  Utah,  515  (Ed.  n.). 

In  Vermont,  515  (Ed.  n.). 

In  Virginia,  615  (Ed.  n.). 
The  leading  case  establishing  the  doctrine  of  Iniputtil  ncKliKinrf. 

515  (Ed.  n.),  610  (Ed.  n.). 
The  leading  case  denying  it,  51G  (Ed.  n.). 

Presence  of  parent  or  guardian  contributing  to  injury,  517  (Ed.  n.)- 
When  action  is  brought  by  parent  or  for  parent's  beneflt,  517  (Kd. 

n.;,518  (Ed.  n.). 
Contributory  negligence  by  child  in  action  by  parent,  518  (Ed.  n.). 
—  Children  Trespassing  —  Playing  with   dangerous  machinery,  518 

(Ed.  n.). 
Left  exposed  or  unguarded,  518  (Ed.  n.),  510  (Ed.  n.). 
Injury  by  fall  of  boards  in  lumber  yard,  619  (Ed.  n.). 
By  dynamite  left  exposed  in  shed,  510  (Ed.  n.). 
Trespassing  upon  railroad  property,  510  (Ed.  n.). 
Playing  in  street,  620  (Ed.  n.),  621  (Ed.  n.). 
CTTY. 

See  Municipal  Corporatiox,  HI,  291,  301  (Ed.  n.),  323. 

CLERKS. 

Of  courts,  liability  for  negligence,  462  (Ed.  n.). 

Liable  for  negligence  of  deputies,  452  (Ed.  n.). 

For  failure  to  require  security  for  costs,  452  (Ed.  n.). 

For  negligence  to  enter  case  on  docket,  452  (Ed.  n.). 

For  negligence  in  entry  and  recording  of  bonds,  452  (Ed.  n.). 

For  accepting  bond  with  insufficient  sureties,  453  (Ed.  n.j. 

COACH  STAND. 

A  nuisance,  138  (Ed.  n.). 

COAL  HOLES. 

Liability  for  injuries  by,  82  (Ed.  n.),  102  (Ed.  n.),  300  (E.I.  n.). 

COASTING  IN  STREETS. 

Municipal  corporation  not  liable  for  injuries  by,  306  (Ed.  n.). 
Unless  prohibited  by  ordinance,  30G  (Ed.  u.). 

COLLISION. 

Rule  of  damages  in  case  of,  between  ships,  490. 

COLORADO. 

Actions  for  Injuries  causing  death,  637  (Ed.  n.),  669  (Ed.  n.). 
Burden  of  proof  on  defendant  to  establish  plaintiff's  contributory 

negligence,  470  (Ed.  n.). 
Common  carrier  may  limit  liability,  344  (Ed.  n.). 

CUMBUSTIBLE  MATERIALS.     See  Fire. 

43 


674  INDEX. 

References  are  to  Pages. 

COMMON  CARRIER.     ^See  Carriers. 

COMMON  EMPLOYMENT. 

See  Master  and  Servant,  198,  203. 

COMPANY.    See  Corporation;  Railway  Company;    Directors  op 
Public  Companies. 

COMPARATIVE  NEGLIGENCE. 

American  decisions,  463  (Ed.  n.). 
The  argument  against  it,  467. 
See  Contributory  Negligence. 

CONCURRENT  NEGLIGENCE. 

When  the  negligence  of  A.  and  B.  combined  result  in  injury  to  C, 

the  concurrent  negligence  of  B.  will  be  no  defense  to  an  action 

against  A.,  33  (Ed.  n.). 
C.  may  hold  either  or  both  liable,  33  (Ed.  n.). 

CONDITION. 

In  respect  of  the  carriage  of  goods  —  Reasonable,  344,  348  (Ed.  n.). 
Exemption  from  liability  unless  complaint  of  loss  is  made  at  once, 

344. 
From  liability  from  loss  of  market  only,  344, 
From  liability  for  everything  except  gross  negligence,  345. 
From  liability  in  respect  of  goods  damaged  beyond  limit  of  com- 
pany's railway,  346,  347. 
From  liability  unless  value  of  goods  is  declared,  347. 
Condition  as  to  time  and  manner  of  presenting  claims  for  damages, 

347  (Ed.  n.). 

Unless  claim  is  made  within  ninety  days  from  time  of  receipt  of 

goods  by  carrier,  347  (Ed.  n.),  348  (Ed.  n.). 
Within  thirty  days,  348  (Ed.  n.). 
Unless  claim  is  presented  in  writing  at  oflSce  within  thirty  days  after 

time  property  is  delivered,  348  (Ed.  n.). 
That  claim  for  damage  should  be  made  before  goods  are  removed 

from  station,  348  (Ed.  n.). 
That  carrier  shall  have  benefit  of  insurance  on  the  damaged  goods, 

348  (Ed.  n.). 

That  carrier  in  whose  possession  goods  are  at  time  of  loss  shall  alone 

be  liable,  348  (Ed.  n.). 
That  carrier  shall  not  be  liable  for  loss  by  fire  unless  caused  by  its 

negligence,  348  (Ed.  n.). 
That  in  case  of  loss,  damage  or  non-delivery  the  ship-owner  shall 

not  be  liable  for  more  than  invoice  value  of  goods,  348  (Ed.  n.). 
That  carrier  shall  not  be  liable  beyond  a  certain  amount  unless  true 

value  stated,  348  (Ed.  n.). 
—  Unreasonable  conditions,  347,  348  (Ed.  n). 


INDKX.  ti76 

References  an*  (o  I'lifcefl. 

CONDITION  —  Continued. 

Condition  not  to  be  liable  for  packages  insulllclently  p&ckcd,  347. 

Not  to  be  liable  for  packages  charged  as  empties,  347. 

At  owner's  risk,  347. 

The  company  accepting-no  responsibility,  347. 

That  claim  for  loss  must  be  made    when    goods  arc  delivered,  848 

(Kd.  n.). 
Not  t<)  a>^sume  any  liability  above  a  certain  amount,  349,  353. 
That  passengt-r  shall  not  take  into  state-room  such  baggage  an  ho 

may  require  for  p'-rsonal  u<e,  349  (Ed.  n.). 
—  C'^nditions  affi-cting  transportation  of  live  stock,  reasonable,  349, 

851  (Ed.  n  ),  354  (Ed.  n.). 
Requiring  demand  for  damages  to  be  made  within  five  days  after  un- 

louillng  stock,  354  (F^d.  n.). 
That  claim  for  loss  must  be  made  before  or  at  the  time  the  stock  Is 

unloaded,  354  (Ed.  n),  355  (Ed.  n.). 
That  company  shall  be  released  from  liability  for  damages  apart 

from  running  of  trains,  from  overloading  or  heat,  354  (Ed.  n.). 
Claim  to  be  made   in  writing,  sworn  to  and   deliverrd  to  general 

freiuht  agent  within  Ave  days  from  unloading,  355  (Ed.  n.). 
That  stock  may  be  jettisoned  for  safety  of  ship,  355  (Ed.  n.). 
Limiting  liability  for  certain  sum   when    loss    Is    not  caused  by 

negligence,  355  (Ed.  n.). 
That  in  consideration  of  free  pass  shipper  assumes  loss,  except  such 

as  may  be  caused  by  collision,  etc.,  355  (Ed.  n.). 

CONNECTICUT. 

Comparative  negligence  denied  in,  4G3  (Ed.  n.). 

Action  for  Injuries  causing  death,  500  (Ed.  n.). 

Railroad  companies  required  by  statute  to  fence  tracks,  112  (Eil.  n.). 

Rule  as  to  burden  of  proof,  473  (Ed.  n.). 

Negligence  of  parent  not  Imputable  to  child,  514  (Ed.  n.). 

Master  must  provide  safe  machinery,  195  (Ed.  n.). 

CONSEQUENTIAL  DAMAGES. 

For  injuries  to  stock,  118  (Ed.  n.). 

For  damage  to  property  by  change  of  grade  of  street**,  801  (Ed.  n.). 

Liability  of  municipal  corporation,  301  (Ed.  n.). 

CONSTITUTIONAL  LAW. 

Statutes  authorizing  double  damages  for  killing  stock  by  railroads, 

constitutional,  123  (Ed.  n.). 
Statutes  providing  for  attorney's  foes  in  such  cases,  123  (Ed.  n.). 
Statute  excluding  contributory  negligcnre  as  a  defense  to  action  for 

damages  to  person  or  animal  for  want  of  fence,  120  (Ed.  n.). 
Ordinances  requiring  owners  to  keep  sidewalks  clear  of  snow  and 

ice,  310  (Ed.  n.). 


676  INDEX. 

References  are  to  Pages. 

CONTRACT. 

Breach  of  contract  and  breach  of  duty  toward  third  person,  10,  11. 
One  committing  a  breach  of  contract  is  liable  to  those  only  with 

whom  he  has  contracted,  11. 
As  where  a  man  negligently  built  a  coachj  11. 
Negligently  put  up  a  chandelier,  11. 

Where  attorneys'  clerks  and  recorders  negligently  examine  or  pre- 
pare titles,  12  (Ed.  n.). 
Where  a  bridge  contractor  built  a  bridge  under  a  contract  with  the 
County  Board  of  Freeholders  and  a  third  person  was  injured  by  its 
fall,  13  (Ed.  n.). 
Where  one  bought  grain  on  the  faith  of  the  certificate  of  an  inspector 

with  whom  the  purchaser  did  not  contract,  13  (Ed.  n.). 
Where  a  water  company  contracted  to  supply  a  city  with  water,  and 
in  consequence  of  a  breach  the  city  was  unable  to  extinguish  a 
fire  13  (Ed.  n.). 
In  such  cases  there  is  no  liability  for  injuries  to  third  persons,  11-13. 
But  where  there  is  also  a  breach  of  duty  — 
As  where  a  man  sold  a  gun  which  he  knew  to  be  dangerous  to 

the  father  of  a  lad  — knowing  he  would  use  it,  11. 
Where  a  man  sold  a  pernicious  hair  dye  to  another  —  knowing 

his  wife  would  use  it,  11. 
Otherwise  where  one  sold  poison  for  a  harmless  medicine,  11, 

13  (Ed.  n.). 
Or  sold  explosive  oils,  13  (Ed.  n.),  287. 
So  where  a  workman  in  the  employ  of  a  ship  painter  was  injured  by 
the  fall  of  a  defective  staging  supplied  by  a  dock-owner  under 
a  contract  with  the  ship-owner,  the  dock-owner  was  held  liable, 
14-19. 
Railway  passenger  can  elect  to  sue  in  contract  or  tort,  368. 
Whether  master  can  sue  when  servant  is  injured,  368. 
Bea  ipsa  loquitur  —  cases  resting  in  contract,  526  (Ed.  n.). 

CONTRACTOR. 

Who  is  a  •'  contractor,"  220. 

Paid  by  job,  220. 

Liable  to  dismissal,  221. 

Interfering  with  work,  216  (Ed.  n.). 

Reserving  power  to  control,  221. 

Limiting  control  as  to  mode  of  doing  work,  221. 

When  owner  not  relieved  of  liability  by  placing  work  in  hands  of 

contractor,  8,  216  (Ed.  n.),  220,  220  (Ed.  n.),  224. 
When  the  work  is  itself  a  nuisance,  219  (Ed.  n.). 
When  the  owner  has  a  duty  to  perform,  220. 

Contractor  placing  work  in  hands  of  sub-contractor,  221, 222  (Ed.  n.)- 
Rule  of  Res  ipsa  loquitur  does  not  apply  to,  526,  533  (Ed.  n.). 


iM>i  x.  »;77 

Rpforono«'s  nre  to  I'ugeH. 

rONTUACT  OK   RELEASE. 

Of  common-law  rights  by  servant  with  master,  IGG,  1C7. 

CONTRIBUTORY  NEGLIGENCE. 
See  Animals,  TJ-S  (Ed.  n.). 
See  Bankkks,  440. 
See  CuiLDRKN,  613. 
SeeYv.scv.,  119  (Ed.  n.). 
Sec  FiRK,  89. 
See  Innkkkpkr,  410. 
See  Mastkr  and  Skrvant,  154. 
See  Physicians,  419. 
See  Railway  Firks,  85,  86  (Ed.  n.). 
See  SiDKWALKS,  314  (Ed.  n.). 
Definition,  459,  4(J0  (Ed.  n.). 
Proximate  cause,  459,  4G1  (Ed.  n.). 
Doctrines  of  Davies  v.  Mann  and  Butterlleld  v.  Forrester,  459  n.,  4C0, 

(Ed.  n.),  4G2  (Ed.  n.). 
Defendant  failing  to  exercise  ordinary  care  after  discovering  plaintlfTs 

negligence,  4G2  (Ed.  n.). 
Trespassers  upon  railroad  tracks  Injured  by  company's  servants, 

4G2  (Ed.  n.). 
—  Comparative  negligence,  4G3  (Ed.  n.). 
The  rule  is  approved  in 

California,  4G3  (Ed.  n.). 
Florida,  463  (Ed.  n.). 
Georgia,  4G3  (Ed.  n.). 
Illinois,  4G4  (Ed.  n.). 
Kansas,  4C4  (Ed.  n.). 
Maryland,  4G5  (Ed.  n.). 
Micliigan,  4G5  (Ed.  n.). 
Mississippi,  4G5  (Ed.  n.). 
Nebraska,  4G5  (Ed.  n.). 
United  States  Courts,  4GG  (Ed.  n.). 
The  rule  is  denied  in  most  of  the  other  States,  403  (Ed.  n.),  466 

(Ed.  n.). 
Negligence  of  third  party,  proximate  cause  an  excuse,  467-469. 
Burden  of  proof,  470  (Ed.  n.). 

That  plaintiff  must  show  negligence  on  the  part  of  defendant,  and 
that  he   was   in  the  exercise   of  due  care  himself,  the  rule,  472 
(Ed.  n.). 
In  Indiana,  472  (Ed.  n.). 
In  Iowa,  472  (Ed.  n.). 
In  Louisiana,  472  (Ed.  n.). 
In  Maine,  472  (Ed.  n.). 


678  INDEX. 

References  are  to  Pages. 

CONTRIBUTORY  NEGLIGENCE  —  Continued. 

In  Massachusetts,  472  (Ed.  n.). 

In  Michigan,  472  (Ed.  n.). 

In  Mississippi,  473  (Ed.  n.). 

In  North  Carolina,  473  (Ed.  n.). 

In  Oregon,  473  (Ed.  n.). 
That  the  burden  of  proof  is  on  defendant  to  establish  plaintiff's  con- 
tributory negligence,  470  (Ed.  n.). 
The  rule  in  the  United  States  Courts,  472  (Ed.  n.). 

In  Alabama,  470  (Ed.  n.). 

In  Arizona,  470  (Ed.  n.). 

In  Arliansas,  470  (Ed.  n.). 

In  California,  470  (Ed.  n.). 

In  Colorado,  470  (Ed.  n.). 

In  Dakota,  470  (Ed.  n.). 

In  District  of  Columbia,  470  (Ed.  n.). 

In  Georgia,  470  (Ed.  n.). 

In  Kansas,  471  (Ed.  n.). 

In  Kentucky,  471  (Ed.  n.). 

In  Maryland,  471  (Ed.  n.). 

In  Minnesota,  471  (Ed.  n.). 

In  Missouri,  471  (Ed   n.). 

In  Montana,  471  (Ed.  n.). 

In  Nebraska,  471  (Ed.  n.). 

In  New  Hampshire,  471  (Ed.  n.) 

In  New  Jersey,  471  (Ed.  n.). 

In  Rhode  Island,  471  (Ed.  n.). 

In  South  Carolina,  471  (Ed.  n.). 

In  South  Dakota,  471  (Ed.  n.). 

In  Texas,  471  (Ed.  n.). 

In  Virginia,  471  (Ed.  n.) 

In  Washington,  472  (Ed.  n.). 

In  West  Virginia,  472  (Ed.  n.). 

In  Wisconsin,  472  (Ed.  n.). 
Decisions  conflicting  in  Connecticut,  473  (Ed.  n.). 

In  Illinois,  473  (Ed.  n.). 

In  New  York,  473  (Ed .  n.). 

In  Ohio,  473  (Ed.  n.). 

In  Pennsylvania,  474  (Ed.  n.). 

In  Vermont,  474  (Ed.  n.). 
Defendant  doing  an  act,  the  consequences  of  which  are  beyond  his 

control,  475,  476. 
Merely  not  anticipating  defendant's  negligence,  478. 
Presumption  that  defendant  will  act  with  ordinary  care,  478. 
That  plaintiff  will  do  the  same,  478. 


INI>KX.  (uH 

Kefpronces  nn»  to  Tairrs. 

CONTRIBUTORY  NEGLKJENCK  —  fontinu, ,1. 

Plaintiff  iiefjllfjeiitly  incurriiiK  danger,  478,  479. 

—  DoinR  illegal  act,  479,  480  (Ed.  n.). 

No  defense  unless  act  was  proximate  cause  of  Injury,  480  (Ed.  n.), 

482  (Ed.  n.). 

Riding  on  wrong  side  of  road,  480  (Ed.  n.). 

Driving  at  speed  forbidden  by  ordinance,  4so  (Ed.  n.). 

Riding  on  Sunday  In  violation  of  law,  480  (Ed.  n.). 

Laboring  on  Sunday,  481  (Ed.  n.). 

The   rule  in   Massachusetts  and  some  other   New  England   SUtcs, 

481  (Ed.  n.). 
Accidental  injury  in  escaping  from  sudden  peril   not    contributory 

negligence,  482,  483  (Ed.  n.),  4K4,  485  (Ed.  n.). 
Though  the  person  would  not  liave  been  injured  had  he  not  made 

the  attempt  to  escape,  484,  48t>  (Ed.  n.). 
One  placing  himself  in  position  of  danger  to  save  the  life  of  another, 

483  (Ed.  n.),487  (Ed.  n.). 

Question  of  contributory  negligence  not  left  to  jury  in  all  caaes,  486, 

487,  488  (Ed.  n.),  489  (Ed.  n.). 
Plaintiff's  act  aggravating  damages,  491. 
Defendant  liable  for  whole  damage,  492. 
Except  where  plaintiff's  negligence  is  separable,  492. 
The  rule  of  damages  in  collision  between  ships,  490. 
Contributory  negligence  of  patient,  492  (Ed.  n.). 
Aggravation  of  disease  by  unsltillful  treatment,  493  (Ed.  n.). 

—  Master  and  servant  —  Servant  remaining  in  master's  service  with 
knowledge  of  risk,  493-497. 

Promise  by  master  to  repair  defect,  494  (Ed.  n.). 
When  employment  is  not  hazardous  and  no  great  skill  Is  reqaired, 
496  (Ed.  n.). 

—  Railway  crossings  —  Duty  of  foot  passengers  to  look  and   listen 
for  approaching  trains,  60  (Ed.  n.),  498. 

Duty  of  drivers  of  vehicles,  499  (Ed.  n.). 

Omission  to  ring  bell  or  sound  whistle,  601  (Ed.  n.). 

Does  not  excuse  traveler  attempting  to  cross  the  track  from  looking 

and  listening  for  trains,  501  (Ed.  n."). 
Though  they  are  running  at  a  dangerous  and  unlawful  rate  of  speed, 

502  (Ed.  n.). 
It  is  not  material  that  one  did  not  look  or  listen,  11  he  could  not 

have  seen  or  heard  the  train,  502  (Ed.  n.). 
It  is  no  excuse  that  he  was  deaf,  502  (Ed.  n.). 
Or  blind,  502  (Ed.  n.),  603  (Ed.  n.). 
Or  intoxicated,  503  (Ed.  n.). 
Whether    intoxication    Is    contributory    negligence    for    the  jury, 

503  (Ed.  n.). 


680  INDEX. 

References  are  to  Pages. 

CONTRIBUTORY  NEGLIGENCE  —  Continued. 

The  rule  is  different  in  case  of  children  of  tender  years  and  the  old 

or  infirm,  503  (Ed.  n.). 
Towards  them  railroad  companies  must  exercise  a  greater  degree  of 

care,  503  (Ed.  n.). 
Omission    to    give    signals   must   be    proximate  cause  of  injury, 

504  (Ed.  n.). 
Invitation  to  cross,  505  (Ed.  n.). 
Where  crossing  is  dangerous,  505  (Ed.  n.). 
When  view  of  track  is  obstructed,  505  (Ed.  n.). 
—  Imputed  negligence—  The  doctrine  of  Thorogood  v.  Bryan,  504- 

506,  507  (Ed.  n.). 
That  the  contributory  negligence  of  a  carrier  or  of  the  driver  of  a 

vehicle  bars  a  recovery  by  the  passenger,  rejected  in  this  country, 

507  (Ed.  n.). 
Recognized  in  some  States,  507  (Ed.  n.). 
The  rule  does  not  apply  as  between  shipper  of  goods  and  carrier, 

512  (Ed.  n.). 
Between  master  and  servant,  512  (Ed.  n.). 
Between  husband  and  wife,  512  (Ed.  n.). 

CORPORATIONS.     See,  also,  Municipal  Corporation;  Railway  Com- 
pany, ETC. 
Highway  repairable  by,  135. 

To  pursue  best  possible  plan  with  respect  to  highway,  140. 
To  select  competent  persons,  140. 

Liable  for  negligence  of  persons  authorized  by  them,  140. 
Bound  to  use  more  than  ordinary  care,  140,  141,  145. 
Not  performing  statutory  duties,  142,  148. 
Duties  voluntarily  undertaken,  149. 

Not  answerable  for  want  of  administrative  ordinances,  149. 
Notice  of  injury,  149,  153. 
Ultra  vires,  150. 

Performing  statutory  duties,  291. 
Bound  to  use  best  skill,  292. 
No  excuse,  employed  contractor,  292. 
Must  be  a  default  in  duty,  293. 
Can  be  guilty  of  a  tort,  293. 
Imperative  or  discretionary  duties,  294-297. 
Corporation  keeping  streets  in  repair,  294. 
Keeping  sewers  open,  295,  304  (Ed.  n.). 
Level  crossings,  295. 
Fencing  footpath,  295. 
Corporations  taking  toll,  299. 
Not  liable  for  inevitable  injury,  299. 


INDKX.  681 

Keferences  aro  to  I'a^eH. 

(CORPORATIONS  —  Continued. 

Liable,  althouf^h  no  profit  made,  '2'J'J. 

Liable,  if  meaus  of  knowing  of  defect,  30O,  ai7  (Kd.  n.). 

No  excuse  that  servants  ordered  to  do  a  tbin^,  8(XJ. 

Or  that  contractor  employed,  300. 

Accident  or  «ja  »?»ajor,  300. 

For  whose  acts  corporation  liable,  301. 

Not  liable  for  mere  error  of  judgment  of  person  employed  by  tbem, 

301. 
Not  liable  for  incidental  negligence  of  contractor,  301,  309. 
Can  recover  against  contractor,  31 1,  315. 

Plaintiff  must  show  that  statutory  duty  was  for  his  benefit,  8:i3. 
Penalty  does  not  bar  action,  323. 

CO-SERVANT.     See  Master  and  Sebvant. 

COSTS. 

Action  for  solicitor  for,  438. 

COUNTIES. 

No    common-law    olMigation    resting  on    to    repair  highways,  134 

(Ed.n.). 
No  common-law  obligation  resting  on  to  repair  bridges,  145  (Ed.  n.). 

COUPLING  CARS. 

Brakemen  assume  risk  of  injuries  in,  IGl,  1C3  (Ed.  n.),  1C5  (Ed.  n.). 
Loaded  with  projecting  timbers,  172  (Ed.  n.). 

COURT  AND  JURY.     See  Law  aa'd  Fact. 
Province  of,  47,  49  (Ed.  n.). 

COWS.     See  Animals. 

CRAWLING  UNDER  TRAIN. 
Ntgligence  per  se,  52  (Ed.  n,"). 

CROSSING.     See  Railway  Company  ani>  CoxTiiini'TOKY  Nkoligkncb. 

CROSS-WALK.     See  Sidewalk. 

DAKOTA. 

Burden  is  on  defendant  to  prove  plaintiff's  contributory  negligeooe, 
470  (Ed.  n.). 

DAMAGES. 

Measure  of,  for  removing  lateral  or  subjacent  support,  10  (Ed.  n.). 

Measure  of,  for  sheriff's  negligence,  455  (Ed.  n.). 

Action  for  iuj-uries  causing  death,  535. 

Measure  of  when  deceased  is  the  father  of  a  family,  661  (Ed.  n.). 

When  deceased  is  a  minor,  552  (Ed.  n.). 


6y2  INDEX. 

References  are  to  Pages. 

DAMAGES  —  Continued. 

Damages  for  injury  to  personal  estate,  547. 

Damages  for  mental  suffering,  542,  596  (Ed.  n.). 

For  loss  of  society,  542,  551  (Ed.  n.). 

Exemplary  or  vindictive  damages,  544  (Ed.  n.),  587, 

Funeral  expenses  and  expenses  of  last  sickness,  545. 

How  far  damages  may  be  estimated  by  annuity  tables,  545. 

Mitigation  of,  587  (Ed.  n.),  588. 

Damages  for  injuries  to  property,  588,  590. 

For  destruction  of  chattel,  590  (Ed.  n.). 

For  personal  injuries,  595-604. 

For  negligence  in  performance  of  contract,  591,  592  (Ed.  n.). 

For  negligence  in  transmitting  telegram,  592,  593  (Ed.  n.). 

Prospective  damages,  593. 

Defendant  only  responsible  for  what  might  reasonably  happen,  594, 

597. 
Admissible  evidence,  598  (Ed.  n.). 

Recovery  of  insurance  money  set  up  in  mitigation  of,  588. 
—  Stock  —  For  killing  stock  of  railroad  company,  122  (Ed.) . 
For  injury  to  stock,  122  (Ed.  n.). 
Exemplary  damages  not  allowed  unless  injury  is  willfully  inflicted, 

122  (Ed.  n.). 
Statutes  authorizing  double  damages,  123  (Ed.  n.). 
Attorney's  fees  in  addition  to  damages,  123  (Ed.  n.). 
See  RA.ILWAY  Companies,  Joint  Tort-Feasors. 

DANGEROUS  THINGS. 

Neglect  of  duties  by  owners  of,  17,  282,  286,  288. 

Liability  to  third  party  for  injury  by  sale  of,  11,  13  (Ed.  n.),  286, 

(Ed.  n.). 
Gun,  11,286. 
Fire  works,  286, 

Poisonous  drugs,  11  (Ed.  n,),  287. 
Poisonous  tree,  91, 
Oil,  13  (Ed.  n.),  287  (Ed.  n.). 
Defective  boiler,  288  (Ed.  n.). 
Barrel  of  fish  brine  in  street,  288  (Ed.  n.). 
Selling  pistol  cartridges  to  minors,  38  (Ed.  n.). 
Shipping  dangerous  goods,  287  (Ed.  n.). 

DANGEROUS  WALLS. 

Brick  wall,  fall  of,  139  (Ed.  n.). 

DEATH. 

Action  for  injuries  causing,  225,  243  (Ed.  n.),  430. 
Whether  death  is  instantaneous  or  not,  557-568. 


I.NDKX.  (;»3 

KnVroiicos  are  (o  Tiikos. 

DEFECT. 

Railroad  companies  not  liable  for  latent  dofectn  in  cars,  374. 
Under  Employer's  Liability  Act,  228. 

DEFECT  IN  HIGHWAY.     See  Highway. 

DEFECTIVE  MACHINERY.     See  Mastkk  and  Skkvant. 

DEFENSE. 

Aggravation  of  injury  by  reason  of  tendency  to  disease  no  defenBe, 

43  (Ed.  n.). 
Incases  of  railway  fires,  t)l  (Ed.  n.). 

DEFINITION  OF  NEGLIGENCE. 

DEGREES  OF  CARE.     See  Ordinary    Care,  Mork    than    Ouuinahy 
Cark;  Less  than  Ordinary  Care. 

DEGREES  OF  NEGLIGENCE. 

'«  Slight,'*  '«  ordinary,"  and  "gross,"  21. 
Sort  and  amount  of  care,  distinguished,  23,  24. 

Tendency  in  America  to  reject  the  distinction  as  to  degrees  of,  24 
(Ed.  n.). 

DELAY. 

Damages  for,  caused  by  strikes  and  riots,  356  (Ed.  n."). 

DELAWARE. 

Master  must  furnish  safe  appliances,  195  (Ed.  n.). 
Action  for  injuries  causing  death,  561  (Ed.  n.). 

DELIVERY. 

After  delivery  at    destination    carrier    liable   for    negligence,    366 

(Ed.n.). 
Under  s.  7  of  Railway  Act,  362. 

DEPOSIT. 

With  bankers,  441  (Ed.  n.). 
Gratuitous,  456. 

DILIGENCE.     See  Skill;  More  than  Orhinary  Care. 

DIRECTORS  OF  PUBLIC  COMPANIES. 
Neglect  of  duties  by,  323. 

Are  agents  and  trustees  of  company,  824  (Ed.  n.).  325. 
Trustees  for  its  creditors,  324  {VA.  n.). 
Liability  to  strangers,  325. 
Liability  for  fraudulent  representations  including  the  purchMe  of 

shares,  324  (Ed.  n.). 
Statutory  liability,  324  (Ed.  n.). 
Liability  for  negligence,  325,  826  (Ed.  n.),  327. 
Liability  of  company  to  liquidator,  327. 


684  INDEX. 

References  are  to  Pages, 

DIRECTORS  OF  PUPLIC  COMPANIES  —  Continued. 

Liability  for  acts  of  co-directors,  328  (Ed.  n.)  ;  329-331. 
Shareholder  suing  them  for  damages,  332 
Misapplication  of  money  by,  332. 
Omission  to  register  shares,  333. 
Liability  of  promoters,  333 

DISCRETIONARY  DUTIES. 

Municipal  corporation  not  liable  for  injuries  sustained  by  reason  of 
omission  to  exercise,  149,  294. 

DISEASE. 

Tendency  to,   aggravation  of  injury  by  reason  of,   no  defense,   43 

(Ed.  n.),  493  (Ed.  n.). 
Proximate  result  of  negligence,  43  (Ed.  n.). 
Aggravation  of,  by  unskillful  treatment,  no  defense,  493  (Ed.  n.) . 

DISEASED  ANIMALS. 

Keeping  of,  not  negligence  per  se,  130. 
Trespassing  on  lands  of  another,  180  (Ed.  n.). 

Where  animals  are  infected  v?ith  disease  by  other  animals  that  owner 
did  not  apply  proper  remedy,  no  defense,  131  (Ed.  n.). 

DISTRIBUTION. 

Of  damages  in  actions  for  injuries  causing  death,  547,  556  (Ed.  d.), 
et  seq. 

DISTRICT  OP  COLUMBIA. 

Burden  is  on  defendant  to  prove  plaintiff's  contributory  negligence, 
470  (Ed.  n.). 

DOCTORS.     See  Physicians  and  Surgeons. 

DOG.     See  Animal. 

DOOR. 

Of  railway  carriage  opening  and  shutting,  399,  400. 

DOUBLE  DAMAGES. 

Statutes  giving  double  damages  for  killing  stocls,  123  (Ed.  n.). 
For  injuries  by  dogs  to  stock,  132  (Ed.  n.). 

DRAINS. 

See  Sewkrs,  304  (Ed.  n.). 

DRAW-BRIDGES. 

Should  be  properly  constructed,  143. 

DRIVING.     See  Law  of  the  Road. 

DRUG. 

Selling  poisonou'5,  11,  287. 


INDKX.  685 

Keferences  uro  to  PairoB. 

DRUNKENNESS. 

Coutributory  negligence,  503  (Ed.  n.). 
Proximate  cause  of  death,  80,  31  (Ed.  n.). 

DUE  CARE. 

What  is,  483  (Ed.  n.). 

DUTY.     See,  also,  Breacu  of  Duty  and  Contract. 

Breach  of  —  One  comniittinK  a  lueach  of  duly  la  liable  for  in juiiefl 

to  third  persons,  10,  12  (Ed.  n.). 
Duty  may  aris^e  out  of  coutract,  2. 
Discretionary  duties  of  corporations,  293,  302  (Ed.  u.). 

EMPLOYERS'  LIABILITY  ACT,  225-251. 
Contracting  out  of  the  act,  225,  226, 
Effect  of  the  act,  22G. 
Who  are  "  workmen,"  227-230. 
"  Defect,"  228,  229,  230. 
"  Superintendence,"  232. 
'<  Machinery,"  232. 
"  Manual  labor,"  232. 
Conforming  to  orders,  233. 
Rules,  233. 

Person  having  charge  of  train,  234. 
Contributory  negligence,  235. 
8.  2  (exceptions),  235. 
8.  3  (amount  recoverable),  236. 
Notice  of  injury,  237-240. 
s.  5  (deductions),  240. 
8.  G  (county  court),  241. 
8.  7  (serving  notice),  242. 
Serving  of  notice  —  Defect  in  notice,  242,  248. 
8.  8  (interpretation),  251. 
Applies  to  cases  under  Lord  Campbell's  Act,  2.'»1. 

EMPLOYMENT. 

Of  persons  engaged  in  common  employment,  l'.»7,  198  (E<1.  n.). 

KQUAL  RIGHTS,  1,  3,  4,  C6,  70. 

ESCAPE. 

Escai)ing  danger  — Accidental  injury,  484,  485  (Ed.  n.). 
Liability  of  slierlff  for,  453  (Ed.  a.). 

EVIDENCE. 

Burden  of  proof  in  actions  of  negligence. 
Scintilla  of  not  sulUcient  to  go  to  jury,  49. 
Questious  for  the  court  and  jury,  47.  49  (Ed.  n.). 


686  INDEX. 

References  are  to  Pages. 

EVIDENCE  —  Continued. 

In  cases  of  fires,  88  (Ed.  n.). 

Of  injuries  caused  by  defects  in  sidewalks,  321  (Ed.  n.). 

Under  statutory  obligation  of  railroad  companies  to  fence  tracks, 
121  (Ed.  n.). 

Presumption  of  negligence —  Cases  resting  in  contract,  526  (Ed.  n.). 

Happening  of  accident  prima  facie  evidence  of  negligence,  526 
(Ed.  n.),  527  (Ed.  n.). 

In  actions  for  injuries  causing  death,  evidence  of  pecuniary  condi- 
tion of  deceased's  family,  554  (Ed,  n.). 

Of  pecuniary  condition  of  defendant,  554  (Ed.  u.). 

Of  pecuniary  condition  of  mother,  554  (Ed.  n.). 

Of  number  of  intestate's  family,  554  (Ed.  n.;. 

Of  ability  of  deceased  to  render  pecuniary  aid  to  family,  554  (Ed.  n.). 

EXEMPLARY   DAMAGES. 

In  actions  for  injuries  causing  death,  644  (Ed.  n.). 

EXCAVATIONS. 

See,  also,  Highway,  140,  141  (Ed.  n.),  218  (Ed.  n.). 

On  or  near  the  highway,  80,  81  (Ed.  n.).  .  ■ 

Liability  for,  140,  141  (Ed.  n.),  218  (Ed.  n.). 

See  Land,  etc.,  Owners  of. 

EXHIBITION. 

Of  wild  animals  in  streets  —  Obstructions,  138  (Ed.  n.). 

EXPLOSIVE  SUBSTANCES. 

Liability  of    vendor  for  injuries  to    third  person  by   sale  of,  13 

(Ed.  n.). 
Care  required  in  use  of,  287. 

FAILURE  TO  PERFORM  STATUTORY  DUTY. 

Negligence  per  se,  55  (Ed.  n.). 

FALLING  SUBSTANCES. 

See  Highway,  70,  71  (Ed.  n.). 

FELLOW-SERVANT. 

See  Master  and  Servant,  179-199. 

FELONY. 

Persons  injured  by,  not  allowed  to  bring  action  until  he  has  insti- 
tuted criminal  proceedings,  547,  548,  549  (Ed.  n.). 

Action  for  loss  of  services  of  daughter  by  seduction,  549  (Ed.  n.). 

Right  of  action  of  person  injured  by  felony  not  merged  in  such 
felony,  547,549  (Ed.  n.). 

See  Injuries  Causing  Death,  537  (Ed.  n.). 


i-M>Kx.  687 

References  air*'  fo  Pnges. 
FENCE. 

At  common  law  owner  not  bound  to  fence  in  bis  animals,  109,  III 

(Ed.  n.). 
Care  in  placlnc  barbed  wire  fence  near  highway,  288  (Ed.  n.) 
Railway  companies  bound  by  statute  to  fence,  110. 
Duty  to  fence  extends  to  all  owners  in  some  States  whether  their 

lands  adjoin  highway  or  not,  110  fEd.  n.). 
Agreement  releasing  company  from  statutory  obllKallon  to  fence,  110 
Parol  agreement  not  binding,  110  (Ed.  n.). 
Railway  companies  are  under  no   common  law  obligation  to  fence 

their  roads,  111  (Ed.  n.). 
This  duty  is  imposed  by  statute,  111  (Ed.  n.). 
They  are  not  reciuired  to  fence  at  station  grounds  and  their    ap- 

proaches,  113  (Ed.  n.). 
At  crossings  of  streets  in  cities  or  towns,  113  (Ed.  n.). 
At  highway  crossings  within  the  limits  of  Incorporated  cltlca  or  towns 

in  some  States,  113  (Ed.  n.). 
Cattle-guards  are  required  at  highway  and  farm  crossings,  114,  IH 

(Ed.  n.). 
Railway  companies  are  not  relieved  of  the  duty  of  fencing  because 

worli  of  construction  Is  in  the  bands  of  contractor,  114  (Ed.  n.). 
Railway  companies  must  fence  on  both  sides   of    their  road,  114 

(Ed.  n.). 
They  are  not  bound  to  fence  their  roads  to  keep  children  off,  115 

(Ed,  n.). 
Sufficiency  of  fence,  115  (Ed.  n.). 
Duty  to  keep  in  repair,  115  (Ed.  n.),  117  (Ed.  n.). 

—  Proximate  cause  —  They  are  not  liable  for  consequential  Injuries 
resulting  from  fright  of  animals  not  caused  by  actual  collision  or 
negligence  of  company,  118  (Ed.  n.). 

—  Contributory  Negligence  —  Where  the  common-law  rule  obtalnn 
requiring  the  owner  of  cattle  to  restrain  them,  the  contributory 
negligence  of  the  owner  in  failing  to  keep  them  from  straying  is» 

I  defense,  119  (Ed.  n.). 

In  other  States  where  the  common-law  rule  docs  not  obtain,  It  Is  not 
a  defense,  119  (Ei\.  n.). 
Though  the  owner  allows  his  cattle  to  run  at  large  In  violation  of 
statute  law,  119  (Ed.  n.). 
And  though  they  were  straying  on  land  which  did  not  belong  to  their 
owner,  119  (FM.  n.). 
Where  the  land  through  which  the  road  runs  belongs  to  the  owner 
of  the  cattle,  and  they  get  upon  the  track  through  the  failure  of 
the  company  to  fence,  119  (Ed.  n.). 
Rule 

In  New  York,  120  (Ed.  n.). 


688  INDEX. 

References  are  to  Pages. 

FENCE  —  Continued. 

In  Indiana,  120  (Ed.  n.). 
In  Michigan,  120  (Ed.  n.). 
In  Ohio,  120  (,Ed.  n.). 
Continuing  to  pasture  hogs  in  field  with  knowledge  of  defect  in  fence, 

not  contributory  negligence,  120  (Ed.  n.). 
Nor  where  plaintiff  knew  of  defect  and  that  horse  was  "breechy," 
120  (Ed.  n.). 

—  Evidence — Burden  of  establishing  negligence  on  plaintiff,  121 
(Ed.  n.). 

In  some  States  the  burden  is  on  the  company  to  show  the  exercise  of 

care,  121  (Ed.  n.). 
Presumption  may  be  rebutted  by  proof  of  care,  122  (Ed.  n.). 
Plaintiff  must  prove  that  the  company  was  bound  to  fence  at  the 
point  of  entry,  122  (Ed.  n.). 
>    —  Statutory  duty  to  fence  —  Railroads  required  to  fence 

In  Connecticut,  112  (Ed.  n.). 

In  Illinois,  112  cEd.  n.). 

In  Indiana,  112  (Ed.  n.). 

In  Iowa,  112  (Ed.  n.). 

In  Kansas,  112  (Ed.  n.). 

In  Maine,  112  (Ed.  n.). 

In  Massachusetts,  112  (Ed.  n.). 

In  Michigan,  112  (Ed.  n.). 

In  Minnesota,  112  (Ed.  n.V 

In  Missouri,  112  (Ed.  n.). 

In  New  Hampshire,  112  (Ed.  n.). 

In  New  York,  112  (Ed.  n.). 

In  Nevada,  112  (Ed.  n.). 

In  Ohio,  112  (Ed.  n.). 

In  Oregon,  112  (Ed.  n.). 

In  Utah,  113  (Ed.  n.). 

In  Vermont,  113  (Ed.  n.). 

In  Washington,  113  (Ed.  n.). 

In  Wisconsin,  113  (Ed.  n.). 

But  none  in  Maryland,  111  (Ed.  :i.). 

FINE.     See  Penalty. 

FIRE. 

When  proximate  cause  of  injury,  32  (Ed.  n.),  46  (Ed.  n.). 
Damage  by,  45,  81,  85  (Ed.  n.)-.90  (Ed.  n.). 
Statutes  in  relation  to,  86  (Ed.  n.). 
Presumption  of  negligence,  85  (Ed.  n.) 

—  Railway  fires  —  Railway  companies  must  adopt  the  most  approved 
appliances  to  prevent  the  setting  out  of  fires,  86  (Ed.  n.). 


INDKX.  689 

ReferencoH  arc  to  I'agpR. 

FIRK  —  Continued. 

Failure  to  use  spark-arrester,  or  using  a  defective  one,  or  ooe 

adiipted    for     burnln*;    coal    on    an    engine    burnlDR    wood,    8G 

(Ed.  n.). 
Permitting    combustible     matter   to    accumulate     near    track,    87 

(Ed.n.). 
Burden  of  proof —  On  company  to  show  care,  fi7  (Ed.  n.). 
Presumption  of  negligence  estubllshod  by  statute,  88  (Ed.  n.). 
—  Evidence  —  That  after  passage   of  train  grass  and  combustible 

material  were  discovered  burning  along  the  line  of  the  rund,  not 

of  Itself  evidence  of  negligence,  88  (Ed.  n.). 
Evidence  of  other  fires,  88  (Ed.  n.). 
Contributory  negligence  —  of  owner  of  land  contlgnoQB  to  a  railroad 

track  — Not  obliged  to  keep  his  land  clear  of  combustible  matter, 

89  (Ed.  n.). 
Instances   of  contributory  negligence  —  Allowing  shavings  to  ac- 
cumulate  about  untluished   building  near    a    railroad   track,  90 

(Ed.  n.). 
Permitting  the  windows  of  a  warehouse  stored  with  combustible 

matter  to  remain  open  and  unglazed,  01  (Ed.  n.). 
Permitting  use   of  locomotive  in  the  vicinity  of  a  warehouse  by  its 

owners,  91  (Ed.  n.). 
Allowing  a  steam  engine  for  threshing  grain  to  be  placed  near  stacks 

of  hay  during  a  high  wind,  91  (Ed.  n.). 
Where  one  could  easily  have  saved  his  building  from  loss  by  Arc  ho 

cannot  recover,  91  (Ed.  n.). 
But  piling  cord  wood  near  track  of  railroad  under  contract  with  the 

company  is  not  sufllcient  to  constitute  contributory  negligence,  90 

(Ed.  n.). 
Nor  leaving  the  windows  of  an  unfinished  building  open,  tboagb  the 

floor  is  covered  with  shavings,  90  (Ed.  n.). 
Nor  suffering  a  roof  of  a  building  near  the  track  to  get  in  such  a 

condition  that  sparks  could  be  blown  through,  90  (Ed.  n.). 
Building  near  a  railroad  track,  90  (Ed.  n.). 

FIRE  ARMS. 

See  Dangerous  Things,  11,  285,  28G  (Ed.  n.). 

FIRE  DEPARTMENT. 

Municipal  corporation  not  liable  for  oraisxion  to  maintain  a  BOltable 

flre  department,  149  (Ed.  n.),  150  (Ed.  n.). 
For  injuries  caused  by  negligence  of  ofl]cersof,  150  (Ed.  n.). 

FIEE-WORKS,  280. 

Municipal  corporation  not  responsible  for  injuries  caused  by  dl»- 
charge  of,  though  in  violation  of  ordinance,  150  (Ed.  n.). 

44 


690  INDEX. 

References  are  to  Pages. 

FLAGMAN. 

See  Railway  Company,  504  (Ed.  n.),  505  CEd.  n.). 

FLOOD. 

Extraordinary,  26,  47  (Ed.  n.). 

Rainfall,  26  n. 

Not  proximate  cause  of  loss,  47  (Ed.  n.). 

Goods  to  be  transported  by  carrier  delayed  through  their  negligence 

and  afterwards  destroyed  by  extraordinary  flood,  47  (Ed.  n.). 
Property  exposed  to  flood  by  wrongful  act  concurrent  in  point  of 

time,  48  (Ed.  n.). 

FLORIDA. 

Comparative  negligence  obtains  in,  463  (Ed.  n.). 
Action  for  injuries  causing  death,  561  (Ed.  n.). 

FOOT  PASSENGERS.     See  Law  of  the  Road. 

FOREMAN. 

Whether  fellow-servant  of  laborer,  183  (Ed.  n.). 

FORGERY. 

Bankers  to  detect,  441,  442  (Ed.  n.). 

FOWLS. 

Whether  owner  liable  for  trespass  by,  124,  125. 

FRUIT  STAND. 

Whether  a  nuisance,  139  (Ed.  n.). 

FUNERAL  EXPENSES. 

When  recoverable  in  action  for  injuries  causing  death,  545. 
Recoverable  in  America  as  part  of  damages,  601. 

GAS  COMPANIES. 

Required  to  use  greatest  care,  289. 
Liable  for  neglecting  to  repair  pipes,  290. 
Persons  must  give  notice  of  escape  of  gas,  290. 

GEORGIA. 

Comparative  negligence  obtains  in,  463  (Ed.  n.). 

Master  must  furnish  safe  appliances,  195  (Ed.  n.). 

Action  for  injuries  causing  death,  537  (Ed.  n.),  562  (Ed.  n.). 

When  injury  amounts  to  a  felony,  548  (Ed.  n.),  562  (Ed.  n.). 

Burden  of  proof  on  defendant  to  establish  plaintiff's  contributory 

negligence,  470  (Ed.  n.). 
Statutes  afiEecting  employer  and  employe,  245  (Ed.  n.). 
Common  carrier  may  limit  liability,  344  (Ed.  n.). 


I 


INDEX.  691 

References  are  to  Pa^eH. 

GOVERNMENT  OFFICEHS,     .SVr  I'riu.ic  Ukkickiw. 

Not  liable  for  negligence  of  subordinates,  446,  460  ^Kd.  n.). 
Postmasters,  450  (Ed.  n.). 
Officers  of  the  army,  450  (Ed.  n.). 

GRATUITOUS   ACTS,  21  n. 
See  VoLUNTKKK,  185. 

IROSS  NEGLIGENCE.     See  More  than  Ordinahy  Care. 

GROWING  CROP. 

GUEST.     See  Innkeeper. 
Liability  of  host,  02. 
Liability  of  landlord  for  injuries  to  guest  of  tenant,  102. 

GUN. 

Vendor  selling  gun  known  to  be  dangerous  to  father  of  lad  knowing 
he  would  use  it,  II. 

HAIR  WASH. 

Vendor  selling  pernicious  hair  dye  to  man  knowing  hi.s  wife  would 
use  it,  11. 

HARTFIELD  v.  ROPER,  516. 

HEAVEN  V.  PENDER. 
In  full,   12,  14-19. 

HIGHWAY. 

Injuries  by  defects  in,  and  some  other  cause,  town  not  liable,  88 
(Ed.  n.). 

Injuries  from  falling  substances,  71  (Ed.  n.). 

Awning  sheet,  71  n.,305  (Ed.  n.). 

Deviation  from  highway  —  Injuries  by,  310  (Ed.  n.). 

Repair  of  highway,  133. 

No  action  at  common  law  for  Injury  arising  from  non-repair  of,  13.^, 
134  (Ed.  n.). 

No  common-law  obligation  resting  upon  Tuori-corporatloDS, 
counties,  townships  and  New  England  towns  to  repair  highways, 
134  (Ed.  n.). 

Cities  and  towns  voluntarily  accepting  charters  from  State  con- 
ferring special  privileges  liable  to  an  action  for  damagus  to 
persons  injured  by  failure  to  keep  highway.s  in  repair,  136 
(Ed.  n.). 

—  Obstructions  — In  erecting  buildings,  138  (Ed.  n.). 

Exhibiting  wild  animals,  138  (Ed.  n.). 

Moving  buildings,  138  (Ed.  n.). 

Stairway  on  side  of  street,  138  (Ed.  n.). 


692  INDEX. 

References  are  to  Pages. 

HIGHWAY—  Continued. 

Post  at  corner  of  street,  138  (Ed.  n.)- 

Hackney  coach  stand  a  nuisance,  138  (Ed.  n.). 

Water  tank  in  center  of  street,  138  (Ed.  n.). 

Market  house,  138  (Ed.  n.). 

Collection  of  carts  for  reception  of  slops,  138  (Ed.  n.). 

Stepping-stone  on  outer  edge  of  sidewalk,  307  (Ed.  n.). 

Temporary  obstruction  by  delivery  of   merchandise  on  sidewalk, 

138  (Ed.  n.). 
Fruit  stand,  139  (Ed.  n.). 
Brick  wall  on  edge  of  sidewalk,  139  (Ed.  n.). 
Water  plug  projecting  above  sidewalk,  307  (Ed.  n.). 
Obstructions  frightening  horses,  142  (Ed.  n.). 
Liability  of  municipal  corporation  for,  142  (Ed.  n.). 
Persons  lawfully  interfering  with  highway  must  see  that  reasonable 
care  is  taken,  140. 

—  Excavation  —  Municipal  corporation  liable  for  dangerous  excava- 
tions left  unguarded  in  streets,  though  the  work  is  in  the  bands  of 
a  contractor,  141  (Ed.  n.). 

And  though  it  has  no  control  over  the  work,  141  (Ed.  n.  ),  222 
(Ed.  n.),  292  (Ed.  n,). 

—  Change  of  grade  —  of  streets  —  Liability  for  damage  caused  by, 
301  (Ed.  n.). 

For  damages  caused  by  surface  water,  302  (Ed.  n.),  303  (Ed.  n.). 

—  Sewers  and  drains,  304  (Ed.  n.). 
Coasting  in  streets,  30G  (Ed.  n.). 
Blasting  in  streets,  305  (Ed.  n.). 

Sidewalks  —  Liability  for  injuries  caused  by  defects  in,  306  (Ed.  n.), 
314  (Ed.  n.). 

HIRE. 

Master  allowing  servant  to  be  hired,  liability,  209,  210  (Ed.  n.). 

HOLE,    ^ee  Excavations. 

In  sidewalk,  307  (Ed.  n.),  309  (Ed.  n.). 

HORSE. 

Obstruction  in  road  frightening,  141  ?i.,  142  (Ed.  n.). 
Liability  of  municipal  corporation  for,  142  (Ed.  n.). 
Hire  of,  210  (Ed.  n.),  212  n. 
Carriage  of,  348,  351  (Ed.  n.). 

HOSPITAL. 

Not  liable  for  negligence  of  agents,  208  (Ed.  n.). 
Not  liable  for  negligence  of  trustees,  208  (Ed.  n.). 
Liable  for  unskillful  treatment  of  unpaid  attending  surgeon,  208 
(Ed.  n.). 


i.M>K.\.  693 

References  nrc  1o  I'n(reR. 

HOST. 

To  guest,  ordinary  care,  duty  to  warn  agatnst  trap,  C3. 
See  Lnnkkki'krs,  410-419. 

HOTEL  KEEPEKS. 

See  Innkkkpeks,  410-419. 

HUSBAND  AND  WIFE. 

Contributory  negligence  of  husband  driving  imputable  to  wile,  612 

(Ed.  n.). 
Action  for  loss  of,  under  Lord  Campbell's  Act,  5:55. 
Under  State  statutes,  55(5  et  scq. 
Damages  under,  543,  644  (Ed.  n.). 
Loss  of  wife's  companionship,  543  (Ed.  n.). 
Of  husband's  companionship,  543  (Ed.  n.). 

ICE. 

See  Sidewalk,  309  (Ed.  n.),  313  (Ed.  n.). 

IDAHO. 

Actions  for  injuries  causing  death,  503  (Ed.  n.). 

IDENTIFICATION. 

Of  passenger  with  driver,  504-518  (Ed.  n.). 

ILLINOIS. 

Actions  for  injuries  causing  death,  503  (Ed.  n.). 

Rule  as  to  burden  of  proof,  473  (Ed.  n.). 

Common  carrier  may  limit  liability,  344  (Ed.  n.). 

Comparative  negligence,  404. 

Negligence  of  parents  not  imputable  to  child,  514  (Ed.  n.). 

Statutes  requiring  railroads  to  fi-nce  traciis,  112  (Ed.  n.). 

Statutes  providing  for  attorney's  fees  in  actious  for  killing  stock, 

123  (Ed.  n.). 
Master  must  furnish  safe  appliances,  195  (Ed.  n.). 

IMPUTED  NEGLIGENCE. 

Contributory  negligence  of  carrier  Imputable  to  passenger,  604,  507, 

(Ed.  n.). 
The  doctrine  of  Thorogood  v.  Bryan,  rejected  in  tbia  coaotry,  507 

(Ed.  n.). 
With  some  exceptions,  507  (Ed.  n.). 
Contributory  negligence  of  driver  of  vehicle  not  imputable  to  one 

riding  with  him,  607  (Ed.  n.). 
Contributory  negligence   of  driver  of  hired  hack  not  Impatablc  to 

passenger,  507  (Ed.  n.),  508  (Ed.  n.). 
Rule  does  not  apply  as  between  shipper  of  goods  and  c&rriers,  512 

(Ed.  n.). 


(594  INDEX. 

References  are  to  Pages. 

IMPUTED  NEGLIGENCE  —  Continued. 

Between  master  and  servant,  512  (Ed.  n.). 
Between  husband  and  wife,  512  (Ed.  n.). 

Negligence  of  parent  permitting  child  to  go  unaccompanied  in  high- 
way imputable  to  child,  rule 

In  California,  514  (Ed.  n.). 

In  Indiana,  514  (Ed.  n.). 

In  Kansas,  514  (Ed.\i.). 

In  Maine,  514  (Ed.  n.). 

In  Maryland,  514  (Ed.  n.). 

In  Massachusetts,  514  (Ed.  n.). 

In  Minnesota,  514  (Ed.  n.). 

In  New  York,  514  (Ed.  n.). 
The  rule  denied 

In  Alabama,  514  (Ed.  n.). 

In  Arljansas,  514  (Ed.,n.). 

In  Connecticut,  514  (Ed.  n.). 

In  Georgia,  514  (Ed.  n.). 

Inlllinois,  514  (Ed.  n.). 

In  Iowa,  515  (Ed.  n). 

In  Louisiana,  515  (Ed.  n.). 

In  Michigan,  515  (Ed.  n.). 

In  Missouri,  515  (Ed.  n.). 

In  Nebraska,  515  (Ed.  n.). 

In  New  Hampshire,  515  (Ed.  n.). 

In  New  Jersey,  515  (Ed.  n.). 

In  North  Carolina,  515  (Ed.  n.). 

In  Ohio,  515  (Ed.  n.). 

In  Pennsylvania,  515  (Ed.  n.). 

In  Tennessee,  515  (Ed.  n.). 

In  Texas,  515  (Ed.n.). 

In  Utah,  515  (Ed.  n.). 

In  Virginia,  515  (Ed.  n.). 

In  Vermont,  515  (Ed.  n.). 
Presence  of  parent  or  guardian  contributing  to  injury,  617  (Ed.  n.). 

INDEPENDENT  CONTRACTOR.     See  Contractor. 

INDIANA. 

Common  carrier  may  limit  liability,  344  (Ed.  n.). 
Comparative  negligence  denied  in,  465  (Ed.  n.). 
Master  must  furnish  safe  appliances,  195  (Ed.  n.). 
Action  from  injuries  causing  death,  537  (Ed.  n.),  664  (Ed.  n.). 
Burden  of  proof  —  Plaintiff  must  show  negligence  on  part  of  defend- 
ant and  that  he  was  without  fault,  472  (Ed.  n.). 


I 


INDKX.  (;«J5 

Referen(«'s  arc  to  I'ujros. 
INDIANA  —  Continued. 

Contributory  UL'j,'ll{ience  of  owners  of  anlmalH  In  allowing  them  to 

run  at  large,  119  (Ed.  n.). 
Negligence  of   parent   imputable   to   child,   513,  514    (Ed.  n.),  517 

(Ed.  n.). 
Railroad  companies  required  by  statute  to  fence  tracks,  112  (Ed.  n). 

INEVITABLE  INJURY. 

6'ee  Act  ok  Goo,  41  (Ed.  u.),  47  (Ed.  n.). 

INFANT. 

See  Children,  613,  521. 

INJURY. 

Detlned,  4. 

Bj'  falling  substances,  71  n. 

Injury  caused  partly  by  defendant,  partly  by  something  else,  41-43. 

No  defense  that  injury  would  have  happened   without  defendant's 

act,  40  (Ed.  n.),  44. 
Or  is  greater  than  would  ordinarily  have  happened,  37. 
Actions  for  injuries  causing  death,  435. 

INJURIES  CAUSING  DEATH. 

Action  for,  243  (Ed.  n.),  535,  547,  550  (Ed.  n.). 
Statutes  and  recent  decisions 

Of  Alabama,  537  (Ed.  n.),  556  (Ed.  n.). 

Of  Arkansas,  537  (Ed.  n.),  557  (Ed.  n.). 

Of  Arizona,  556  (Ed.  n.). 

Of  California,  537  (Ed.  n.),  55M  (Ed.  n.). 

Of  Colorado,  537  (Ed.  n.),  55t»  (Ed.  n.). 

Of  Connecticut,  660  (Ed.  n.). 

Of  Delaware,  561  (Ed.  n.). 

Of  Florida,  561  (Ed.  n.). 

Of  Georgia,  537  (Ed.  n.),  562  (Ed.  n.). 

Of  Idaho,  563  (Ed,  n.). 

Of  Illinois,  563  (Ed.  n.). 

Of  Indiana,  530  (Ed.  n.),  564  (Ed.  n.). 

Of  Iowa,  564  (Ed.  n.). 

Of  Kansas,  538  (Ed.  n.),  565  (Ed.  n.). 

Of  Kentucky,  538  (Ed.  n.),  565  (Ed.  u.). 

Of  Louisiana,  638  (Ed.  n.),  566  (Ed.  n.). 

Of  Maine,  567  (Ed.  n.). 

Of  Maryland,  538  (Ed.  n.)i  667  (Ed.  n.). 

Of  Massachusetts,  538  (Ed.  n.),  568  (Ed.  n.). 

Of  Michigan,  539  (Ed.  n.),  669  (Ed.  u.). 

Of  Minnesota,  570  (Ed,  n.). 

Of  Mississippi,  530  (Ed.  n  ),  570  (Ed.  n.). 


696  INDEX. 

Beferences  are  to  Pages. 

INJURIES  CAUSING  DEATH  —  Continued. 

Of  Missouri,  539  (Ed.  n.),  570  (Ed.  n.). 

Of  Montana,  571  (Ed.  n.)- 

Of  Nebraska,  572  (Ed.  n.). 

Of  Nevada,  572  (Ed.  n.). 

Of  New  Hampshire,  539  (Ed.  n.),  573  (Ed.  n.). 

Of  New  Jersey,  573  (Ed.  n.). 

Of  New  Mexico,  574  (Ed.  n.). 

Of  New  York,  539  (Ed.  n.),  575  (Ed.  n.). 

Of  North  Carolina,  576  (Ed.  n.). 

Of  Ohio,  539  (Ed.  n.),  576  (Ed.  n.). 

Of  Oklahoma,  577  (Ed.  n.). 

Of  Oregon,  577  (Ed.  n.). 

Of  Pennsylvania,  539  (Ed.  n.),  577  (Ed.  n.). 

Of  Rhode  Island,  539  (Ed.  n.),  578  (Ed.  n.). 

Of  South  Carolina,  579  (Ed.  ni'). 

Of  South  Dakota,  539  (Ed.  n.). 

Of  Tennessee,  540  (Ed.  n.),  580  (Ed.  n.). 

Of  Texas,  540  (Ed.  n.),  580  (Ed.  n.). 

Of  Utah,  582  (Ed.  n.). 

Of  Vermont,  540  (Ed.  n.),  583  (Ed.  n.). 

Of  Virginia,  583  (Ed.  n.). 

Of  Washington,  540  (Ed.  n.),  584  (Ed.  n.). 

Of  West  Virginia,  584  (Ed.  n.). 

Of  Wisconsin,  540  (Ed.  n.),  585  (Ed.  n.) 

Of  Wyoming,  585  (Ed.  n.). 

—  Action  —  Right  of  action  by  parent  for  loss  of  support,  538,  539, 
541  (Ed.  n.). 

Right  of  action  of  person  injured  by  felony  not  merged  in  felony, 

647,  548  (Ed.  n.). 
Person  must  prosecute  felon  first  in  England,  547,  548,  549  (Ed.  n.). 
But  father  suing  for  loss  of  service  of  daughter  by  seduction  may 

maintain  action,  549  (Ed.  n.). 
The  rule  in  Georgia,  548  (Ed.  n.). 
Action  can  be  maintained  whether  death  is  instantaneous  or  not, 

549,  550  (Ed.  n.). 
Doctrine  of  contributory  negligence  applies  under  statutes,  537,  550, 

(Ed.  n.). 
Abatement  of  action  by  death  of  wrong-doer,  547. 
Survival  of  action  as  against  representatives,  547. 
Party  receiving  compensation  in  satisfaction  of  all  claims  before 

death,  542. 

—  Evidence  — Of  ability  of    deceased   to  render  pecuniary  aid  to 
family,  554  (Ed.  n.). 

That  deceased  was  a  kind  husband  and  father,  554  (Ed.  n.). 


INDKX.  697 

Refercnoos  are  to  I'aires. 

INJURIES  CAUSING  JiEATll  —  Continu,,l. 
Of  number  of  intestate's  family,  654  (Ed.  n.). 
Of  pt'cunlary  condition  of  deceased's  family,  564  (Ed.  n.). 
Of  pecuniary  condition  of  defendant,  5r>i  (Kd.  n.). 
Of  letters  of  deceased  son  to  father,  H'li  (Ed.  n.). 

—  Jurisdiction  —  Actions   not  maintainable  out  of  State   in  which 
injury  occurred,  555  (Ed.  n.). 

When  statutes  of  State  where  injury  occurred  and  where  salt  brought 
are  similar,  555  (Kd.  n.). 

—  Limitation  —  Provided  for  by  statutes,  565  (Ed.  n,). 
When  statutes  are  silent,  555  (Ed.  n.). 

—  Daraajies  —  Measure  of,  when  deceased  Is  the  father  of  a  family, 
551  (Ed.  n.). 

When  deceased  Is  a  minor,  552  fEd.  n.). 

Damages  for  injury  to  personal  estate,  440. 

Damiiscs  for  mental  sufferin;;,  642. 

For  loss  of  society,  wife's  companionship,  642,  643  (Ed.  n.). 

Of  husband's  companionship,  543  (Ed.  n.). 

Nominal  damases,  543. 

Exemplary  or  vindictive  damages,  544  (Ed.  n.). 

Funeral  expenses  and  expenses  of  last  sickness,  rA5. 

How  far  damages  may  be  estimated  by  annuity  tables,  546,  646. 

INNKEEPER. 

Neglect  of  duties  by,  410,  411  (Ed.  n.). 

Liable  for  thefts  of  servants,  412  (Ed.  n.). 

How  far  liable  for  burglary,  412  (Ed.  n.). 

For  losses  by  flroo,  412  (Ed.  n.). 

For  safe-keeping  of  guest's  horse,  412  (Ed.  n.). 

For  failing  to  inform  guest  of   prevalence  of  small-pox  at  Inn,  412 

(Ed.  n.),  413  (Ed.  n.),  418  (Ed.  n.). 
Not  liable  for  loss  of  property  taken  into  guest's  exclusive  posses- 

sion,  413  (Ed,  n.)- 
Or  committed  to  the  custody  of  another,  413  (Ed.  n.). 
Liability  that  of    ordinary  bailee  for    baggage    left    at    Inn,    413 

(Ed.  n.). 
For  money  deposited  with  clerk,  413  (Ed.  n.). 

Before  the  relation  of  Innkeeper  and  guest  has  begun,  413  (Ed.  n.). 
After  the  relation  has  ceased,  413  (Ed.  n.),  414  (Ed.  n.). 
Innkeeper  keeping  sea-bathing  house,  liability  for  clothes  of  guesta 

bathing,  412  (Ed.  n.). 
Liability  may  attach  before  one  is  assigned  a  room,  414  (Ed.  n.). 
Liability  during  temporary  absence  of  guest,  413  (Ed.  n.). 

—  Contributory   negligence  — Keeping  largo    amount  of    money  In 
room  contrary  to  known  rules,  414  (Ed.  n.). 


698  INDEX. 

Beferences  are  to  Pages. 

INNKEEPER  —  Continued. 

Hanging  overcoat  in  open  hall,  414  (Ed.  n.),  418  (Ed.  n."). 
Intrusting  property  to  another,  414  (Ed.  n.;. 
Failing  to  keep  room  locked,  414  (Ed.  n.),  415  (Ed.  n.). 
Omitting  to  inform  innkeeper  of  absence  of  lock,  415  (Ed.  n.). 
Consenting  to  occupy  room  with  another  guest,  415  (Ed.  n.). 
Guest  getting  drunk  at  bar,  415  (Ed.  n.). 

—  Statutory  liability,  415  (Ed.  n.). 
Posting  notices  on  doors,  416  (Ed.  n.). 

Notice  printed  at  head  of  register  will  not  do,  416  (Ed.  n.). 

No  defense  that  guest  read  a  copy  there  when  none  was  posted  in  his 

bed-room,  416  (Ed.  n.). 
Strict  compliance  with  provisions  of  statute  required,  416  (Ed.  n.). 
Obligation  to  notify  innkeeper  of  property  of  extraordinary  value, 

416  (Ed.  n.). 
It  does  not  attach  to  peddler  with  his  pack,  416  (Ed.  n.). 
Construction  of  statutes  limiting  liability  of  innkeeper,  416  (Ed.  n.). 

—  Who  is  a  guest,  417  (Ed.  n.). 

Length  of  time  of  one's  stay  at  an  inn,  417  (Ed.  n.). 

Payment  of  stipulated  sum  per  week,  417  (Ed.  n.). 

Transient  visitor,  417  (Ed.  n.). 

Army  oflBcer  boarding  with  family  on  fixed  terms,  417  (Ed.  n.). 

Eailway  conductor  renting  rooms  at  hotel,  418  (Ed.  n.). 

Resident  lodging  at  inn  with  disreputable  woman,  417  (Ed.  n.). 

Resident  depositing  money  with  clerk  for  safe-keeping,  417  (Ed.  n.). 

—  Boarding-house  keepers  —  not  held  to  same  degree  of  care  as 
innkeepers,  418  (Ed.  n.). 

Liability  of  restaurant  keeper,  418  (Ed.  n.). 

Public  caterer  liable  for  supplying  guests  with  unwholesome  food 

418  (Ed.  n.). 
Owner  of  apartment  hotel  not  an  innholder,  419  (Ed.  n.). 

INSURANCE. 

In  actions  for  injuries  causing  death,  whether  benefit  of  to  be  taken 
into  account  in  reduction  of  damages,  571,  588  (Ed.  n.). 

INSURER. 

Carrier  an  insurer  of  goods,  333,  336  (Ed.  n.). 

INTENTIONAL  ACT. 
Not  negligence,  3. 

INTERVENTION  OF  PLAINTIFF. 

See  Contributory  Negligence,  459-521. 
iS'ee  Proximate  Cause,  30,  31  (Ed.n.). 

INTERVENTION  OF  THIRD  PARTY. 
See  Proximate  Cause,  30,  31  (Ed.  n.). 


i.M>i:x. 

ReferonoeH  are  to  Pii^frH. 

INTERVENTION  OF   TUE    FORCES  OK    NATURE.     .S<«  Puoxjmai  . 
Cause. 

INTOXICATION. 

Conlrlbulory  negligence,  503  (Ed.  n.). 
Question  for  the  jury,  50;J  (Ed.  n.). 
No  excuse,  503  (Ed.  n.). 
Proximate  cause  of  death,  II  (Ed.  n.). 

INVITATION. 

Degree  of  care  to  be  exercised  towards  persons  coming  upon  in!  i 

by,  G2,  71,  72  (Ed.  n.),  27(;,  277. 
Invitation  may  be  express  or  implied,  15,  72  (Ed.  n.). 
Is  a  question  of  evidence,  281. 
Liability  for  injury  to  police  officer  entering  building  to  Inspect 

elevator  as  required  by  statute,  73  (Ed.  n.). 
For  injury  to  ofllcer  entering  premises  at  request  of  tenant  to  arrest 

a  person,  73  (Ed.  n). 
For  injury  to  oue  hiiviug  a  right  of  way  over  preml.ses,  73  (Ed.  n.). 
For  defective  condition  of  public  hall,  104  (Ed.  n.),  207. 
For  injury  to  customer  in  store,  27'J,  280  (Ed.  n.),  261. 
Coming  upon  railroad  premises,  276 -27'J. 

IOWA. 

Burden  of  proof  —  Plaintiff  must  show  negligence  on  part  of  defend- 
ant, and  that  he  was  without  fault,  472  (Ed.  n.). 

Consequential  damage  to  cattle  by  getting  on  railroad  track,  lltf 
(Ed.  n.). 

Railroads  required  by  statute  to  fence,  sufficiency  of  fence,  112 
(Ed.  n.),  lie  (Ed.  u.). 

Common  carrier  may  limit  liability,  344  (Ed.  n.). 

Contributory  negligence  of  driver  of  vehicle  impotable  to  one  riding 
with  him,  508  (Ed.  n.). 

Statutory  liability  of  railway  companies  for  injuries  to  employc.H. 
245  (Ed.  n.;. 

Construction  of  statutes  affecting  the  liability  of  railway  companies 
to  employes,  246  (Ed.  n.). 

Master  must  furnish  safe  appliances,  196  (Ed.  n.). 

Actions  for  injuries  causing  death,  564  (Ed.  u.). 

JOINT  TORT-FEASORS. 

Owners  of  two  or  more  animals  doing  injury  are  not,  1S3. 
May  be  sued  jointly  or  separately,  603,  604. 

JUDICATURE  ACT. 

Execution  of  trust  assigned  to  Chancery  Division  of  nigh  Coart  by, 
254. 


700  INDEX. 

References  are  to  Pages. 

JUDGES. 

Not    liable  for  negligence  in  ordinary  performance  of  duties,  451 

(Ed.  n.). 
Though  they  act  corruptly  or  oppressively,  451  (Ed.  n.). 
Magistrates  must  not  only  act  within  their  jurisdiction,  451  (Ed.  n.)- 
But  honestly  and  in  good  faith,  451  (Ed.  n.). 

JURISDICTION. 

In  actions  for  injuries  causing  death,  555  (Ed.  n.). 

JURY. 

Questions  for,  49. 

JUSTICES  OF  THE  PEACE. 

Must  not  only  act  within  their  jurisdiction,  451  (Ed.  n.). 

But  honestly  and  in  good  faith,  451  (Ed.  n.). 

Liable  for  negligence  when  they  act  ministerially,  451  (Ed.  n.). 

For  entering  up  judgment  by  mistake  for  defendant,  which  plaintiff 

is  obliged  to  satisfy,  451  (Ed.  n.). 
For  issuing  order  of  arrest  without  undertaking  of  indemnity,  451 

(Ed.  n.). 
For  issuing  warrant  of  arrest  without  authority  of  law,  451  (Ed.  n.). 
For  less  of  money  collected  officially  and  deposited  with  private 

account,  451  (Ed.  n.). 

KANSAS. 

Comparative  negligence  obtains  in,  465  (Ed.  n.) . 

Master  must  furnish  safe  appliances,  195  (Ed.  n.). 

Actions  for  injuries  causing  death,  538  (Ed.  n.),565  (Ed.  n.). 

Burden  of  proof  on  defendant  to  establish  plaintiff's  contributory 

negligence,  471  (Ed.  n.). 
Railroad  companies  must  inclose  their  tracks  with  fence  —  Building 

fence  along  sides  not  sufficient,   112   (Ed.  n.),  114  (Ed.  n.),  116 

(Ed.  n.). 
Statutes  providing  for  attorney's  fees  in  action  for  killing  stocky 

constitutional,  123  (Ed.  n.). 
Statutes  affecting  employer  and  employe,  247  (Ed.  n.). 
Negligence  of  parent  imputable  to  child,  514, 
Common  carrier  may  limit  liability.  344  (Ed.  n.). 

KENTUCKY. 

Rule  as  to  comparative  negligence,  465  (Ed.  n.). 
Common  carrier  may  limit  liability,  344  (Ed.  n.) 
Actions  for  injuries  causing  death,  538  (Ed.  n.),  565  (Ed.  n.) 
Burden  of  proof  on  defendant  to  establish  plaintiff's  contributory 
negligence,  471  (Ed.  n.). 


IMJKX.  701 

Rofcrouoos  arc  to  ru(;eH. 
KNOWLEDGE. 

Of  dangerous  condition    of  premises  by  landlord,  107  (FA.  n.). 
Of  dangerous  contUtion    of  premises  by  corporation,   IW. 
iScienter,  proof  of,  when  necessary,  132,  284. 
Notice  of  defect  in  highway,  300,  320  (Ed.  n.),  321  (Ed.  n.). 

LAND,  ETC.,  OWNERS  OF.     See,  also,  SurroRi. 
Equal  rights,  4,  6,  6,  6G,  70. 
Digging  near  edge  of  land,  5-10,  CG. 
Underground,  It  (Ed.  n.),  09. 
Support  of  buildings,  5-10,  GO,  70  (Ed.  n.). 
Property  used  for  one's  own  advantage,  more  than  ordinary  care 

required,  70. 
Coming  upon  land  by  invitation,  71,  72. 
Upon  business  premises,  72  (Ed.  n.). 
Upon  railroad  premises,  73  (Ed.  n.). 
Upon  whiirf,  73  (Ed.  n.). 
Coming  upon  land  without  invitation,  74-78. 
Bare  licensee,  75. 

Owner  liable  for  anything  in  the  nature  of  a  trap  known  to  hiro,  79. 
Excavation  upon  laud,  80,  81  (Ed.  n.). 
Fire  upon  land  —  Liability  at  common  law  and   by  statute,  81,85 

(Ed.  n.). 
Poisonous  trees,  91. 
Dangerous  substances  on  land,  82,  83. 
Bringing  water  upon  land,  92,  98. 
Surface  water,  92. 

Fences  upon  land,  106,  111  (Ed.  n.)-123. 
See  Real  Property. 
LANDLORD  AND  TENANT. 

Liability  for  original  construction,  100,  101. 

Liability  for  a  nuisance,  101,  102  (Ed.  n.). 

When  landlord  has  covenanted  to  do  repairs,  102. 

Liability  of  landlord  and  tenant  for  injuries  to  third  persons,  102. 

Injuries  by  coal  holes  in  sidewallvs,  lOi'  (Ed.  n.). 

Knowledge  of  defective  condition  of  premises  at  time  of  lotting,  103 

(Ed.  n.). 
Liability  of  one  letting  hall  to  be  used   for  public  purposes,    104 

(Ed.  n.). 
Liability  when  lessee  has  covenanted  to  n-palr,  104  (Ed.  n.). 
Liability  of  landlord  to  tenant,  102,  100  (Ed.  n.). 
Where  landlord  retains  control  of  premlsis,  107  (E<1.  n.). 
Where  premises  are  in  a  dangerous  condition,  107  (Ed.  n.). 
Letting  premises  knowing  they  are  Infected   with    sintlNpoz,  108 

(Ed.  n.). 
Negligence  in  respect  to  use  of  water  pipes,  108  (E'l.  n.). 


702  INDEX. 

References  are  to  Pages, 

LATENT  DEFECT. 

Master  liable  for,  170  (.Ed.  n.). 

LATERAL  SUPPORT.    See  Support. 

LAW  AND  FACT. 

Negligence  a  mixed  question  of  law  and  fact,  49. 

When  the  facts  are  disputed  but  the  conclusion  to  be  drawn  there- 
from undisputed  the  question  of  negligence  is  for  the  jury,  49. 

When  the  facts  are  undisputed  and  the  conclusion  to  be  drawn 
therefrom  indisputable  the  question  of  negligence  is  for  the  court, 
49  (Ed.  n.). 

Illustrations  of  negligence  per  se,  50-55  (Ed.  n.). 

Crossing  railroad  tracks,  50. 

Walking  on  track,  51. 

Crawling  under  train,  52. 

Riding  on  platform  of  cars,  52,  376  (Ed,  n.). 

Projecting  arm  from  car  window,  52,  378  (Ed.  n.). 

Alighting  from  moving  train,  54,  378  (Ed.  n.),  399. 

Boarding  moving  train,  53,  375  (Ed.  n.). 

Sleeping  near  track,  52. 

Lying  on  track,  52. 

Stepping  in  front  of  locomotive,  51. 

Failure  to  perform  statutory  duty,  65. 

Defect  in  highway,  55. 

LAW  OF  THE  ROAD. 

Persons  not  bound  to  keep  to  right  side  of  road  in  England,  63. 
Prima  facie  evidence  of  negligence,  that  vehicle  was  on  wrong  side 

of  road,  63. 
Foot  passengers  and  drivers   have  equal  rights  in  public  streets, 

63. 
Duty    of  foot  passengers  and  horsemen  to  give  way  to  loaded 

vehicles,  64  (Ed.  n.). 
Duty  of  pedestrians  to  look  both  ways  before  crossing  business 

street  of  large  cities,  64  (Ed,  n.). 
Drivers  of  vehicles  in  America  required  to  keep  to  the  right  of  the 

center  of  the  road,  64  (Ed.  n.). 
When  a  violation  of  the  law  will  not  prevent  a  recovery  by  plaintiff 

or  render  defendant  liable,  64  (Ed.  n.). 
More  care  is  exacted  of  one  on  the  wrong  side  of  the  road  than  if  he 

were  on  the  right  side,  65  (Ed.  n.). 
When  the  rule  of  the  road  does  not  apply,  65  (Ed.  n.;. 

LESSOR  AND  LESSEE. 

See  Landi-ord  ani>  Tenant,  108,  108. 


INDKX.  703 

Roforcuces  aro  to  I'ajics. 

LESS  THAN  ORDINARY   CARK. 
Neglect  of  duties  rccjulrlnf;,  \i't. 
Gratuitous  depositaries,  4r)C. 
Bankers  as  gratuitous  depositaries,  45G. 
Gratuitous  bailor,  457. 
Gratuitously  dedicatiug  a  road,  457. 
Volunteer,  457. 
liare  licensee,  457. 
Trespasser,  457. 
Doing  a  gratuitous  service,  458. 
Gratuitously  acting  as  solicitor,  457. 

LEVEL  CROSSINGS. 

See  Railway  Companies,  60  (Ed.  n.),  113  (Ed.  n).,  498  (Ed.  n.) 
60G  (Ed.  n.). 

LICENSEE. 

No  lliibiiity  for  injuries  to,  where  there  is  no  nuisance,  74,  467. 

Injury  to  workman  getting  under  crane  and  bucket,  74. 

To  person  entering  newspaper  office  late  at  nlglit,  75  (Ed.  n.),  273 

(Ed.  u.). 
To  one  taking  refuge  in  public  hotel  to  escape  a  storm,  74  (Ed.  n.). 
To  one  taking  refuge  in  a  railroad  station  bouse  to  escape  a  storm, 

75  (Ed.  n.). 

LIFE,  LOSS  OF.     <See  Actions  von  Injubiks  Cai\sing  Dkatii. 

LIMITATION  OF  ACTIONS. 

Affecting  damage  to  land  —  By  excavations,  D  (Ed.  n.). 
In  actions  for  injuries  causing  death,  555  (Ed.  n.). 

LIVE  STOCK.     See  Stock. 

LORD  CAMPBELL'S  ACT. 

See  Injuries  Causing  Death,  535. 

Doctrine  of  contributory  negligence  applies  under,  537,  540  (Ed.  n.;. 

Negligence  of  fellow-servant,  540  (Ed.  n.). 

LOSS  OF  SOCIETY. 

Not  an  element  of  damage  in  actions  for  injuries  causing  death,  643, 
543  (Ed.  n.). 

LOUISIANA. 

Action  for  injuries  causing  death,  .""iSS  (Ed.  n.),  Bfitl  (Ed.  n.). 
Burden  of  proof  —  Plainliff  must  show  negligence  on  pari  of  defend- 
ant ami  that  he  was  without  fault,  472  (Ed.  n.). 
Attorney's  fees  in  actions  for  killing  slock  not  allowed,  123  (Ed.  n.). 
Railroad  companies  not  required  by  statute  to  fence,  111  (Ed.  n.). 
Common  carrier  may  limit  liability,  344  (Ed.  u.). 


704  INDEX. 

References  are  to  Pages. 

LUGGAGE. 

See  Railway  Company,  3G0,  363  (Ed.  n.). 

LYNCH  V.  NURDIN,  31  n.,  516. 

MAGISTRATE. 

See  Justice  of  the  Peace,  451  (Ed.  n.). 

MAIL  AGENT. 

Not  fellow-servant  of  railroad  employe,  187  (Ed.  n.). 
Except  in  Pennsylvania,  187  (Ed.  n.). 

MAIL  CONTRACTOR. 

Liability  for  money  lost  through  negligence  of  agents,  450  (Ed.  n). 

MAINE. 

Action  for  injuries  causing  death,  567  (Ed.  n.). 
Burden  of  proof  —  plaintiff  must  show  negligence  on  part  of  defend- 
ant and  that  he  was  without  fault,  472  (Ed.  n.). 
Negligence  of  parent  imputable  to  child,  514  (Ed.  n.). 
Railroad  companies  required  to  fence  tracks,  112  (Ed.  n.). 
Common  carrier  may  limit  liability,  344  (Ed.  n.). 

MALPRACTICE. 

Action  against  firm  of  physicians  for,  419,  422  (Ed.  n.). 
Contributory  negligence  in  actions  for,  426  (Ed.  n.). 

MANDATORY. 

Skill  required  of,  21  n. 

MAN  TRAP. 

Setting  up  spring  guns  on  premises,  79. 
One  may  protect  shop  by,  80  n. 

MANUAL  LABOR. 

Under  Employer's  Liability  Act,  232. 

MANUFACTURER. 

Bound  to  reasonable  care,  61; 

MARKET  HOUSE. 

Whether  a  nuisance,  138  (Ed.  n.). 

MARYLAND. 

Comparative  negligence  obtains  in,  465  (Ed,  n.) . 
Action  for  injuries  causing  death,  538  (Ed.  n.),  567  (Ed.  n.). 
Adult  children  entitled  to  recover  for  death  of  parent,  553  (Ed.  n.). 
Burden  of  proof  on  defendant  to  establish  plaintiff's  contributory 

negligence,  471  (Ed.  n.). 
Negligence  of  parent  imputable  to  child,  514  (Ed.  n.). 
Railroad  companies  not  required  to  fence.  111  (Ed.  n.) 


INDEX.  705 

Referencps  arc  lo  I'u^oh. 

MASSACHUSETTS. 

Comparative  nc'Kligence  denied  In,  466  (Ed.  n.). 

Master  must  furnish  safe  appliances,  1!»5  (Ed.  n.). 

Action  for  Injuries  cansins  deatli,  538  (Ed.  n.),  6C8  (Ed.  n.). 

Burden  of  proof  —  pliiiiiliff  must  sliow  ne<;liKence  on  part  of  defend- 

ant  and  tiiat  he  was  without  fault,  472  (Ed.  n.). 
Railroad  companies  required  ijy  statute  to  fence  tracks,  112  (Ed.  n.). 
Negligence  of  parent  imputable  to  child,  C14  (Ed.  o.),  C17  (Ed.  n.). 
Common  carrier  may  limit  liability,  344  (Ed.  n.). 

MASTER  AND  SERVANT. 

Breach  of  duty  to  servants,  153,  154. 

Master  liable  for  negligence  in  selecting  .servants,  154,  155. 

Or    retaining    them  after  notice  of   their  Incompetency,   166,    150 

(Ed.  n.). 
ne    must    talie    reasonable    care   to   furnish    them  with  adequate 

materials,  155,  157  (Ed.  n.),  1C7  (Ed.  n.). 
He  must  make  rules  for  the  safe  niauagen-ent,  101,  1G2,  105  (Ed.  n.). 
He    does    not    warrant   the   competency  of  his  servants,    157,  169 

(Ed.  n.). 
Or  guarantee  his  servants  against  all  risks,  100,  101  (IM.  n.). 
And  he  Is  not  liable  for  Injuries  to  servants  In  consequence  of  their 

disobeying  positive  orders,  159. 
Or  rules,  105  (Ed.  n.). 
The  master  must  inform  the  servant  of  extraordinary  risks,  101,  102, 

105  (Ed.  n.). 
Master  liable  for  latent  defects,  103  (Ed.  n.),  170. 
The  servant  assumes  the  ordinary  risks  incident  to  bis  employment, 

100,  173. 
Though  hired  for  a  different  and  less  dangerous  business  and  put 

into  a  more  dangerous  business  against  protest,  172  (Ed.  n.). 
Waiver  of  common-law  rlglits  by  servant,  KlG. 
Employe  suddenly  commanded  to  do  a  particular  act  not  riHjuircd  to 

exercise  same  degree  of  diligence  as  when  he  has  time  for  reflection, 

100  (Ed.  n.). 
Continuing  in  service  after  notice  or  knowledge  of  danger,  ICu,  100 

(Ed.  n.),  173,  175  (Ed.  n.),  493  (Ed.  n.). 
Promise  by   master  to  repair  defect  In  machinery  or  tools,  171,  175 

(Ed.  n.),  494  (Ed.  n.). 
Continuing  in  service  after  promise  by  master  to  repair  defects,  398, 

399,400,  175,  170  (Ed.  n.),  494  (Ed.  n.),  495  (Ed.  n.). 
When  employment  Is  not  hazardous  and  no  great  skill  Is  required, 

496  (Ed.  n.). 
—  Fellow-servant  —  Master  not  liable  for  damage   resulting  from 

negligence  of  fellow -servant  in  the  course  of  common  employment, 

179. 

45 


706  INDEX. 

Eeferences  are  to  Pages. 

MASTER  AND  SERVANT  —  Continued. 

Who  are  fellow-servants,  179-186  CEd.  n.),  183. 

Railroad  employes,  179-186  (Ed.  n.). 

Who  are  not  fellow-servants,  186-189  (Ed.  n.). 

Volunteer  assistants,  185,  189  (Ed.  n.). 

Servants   serving   the    same  master  yet  having  different  masters, 

189,  190. 
Vice -principal  —  Test  whether  one  is  fellow- servant  or  vice-princi- 
pal, 187,  188,  190-196  (Ed.  n.). 
Duty  to  provide  safe  machinery  cannot  be  delegated  to  servant  so 

as  to  relieve  master  from  responsibility,  193-196  (Ed.n.). 
Persons  engaged  in  common   employment,    197, 198  (Ed.   n.),  199 

(Ed.  n.). 
—  Breach  of  duty  to  others,  199. 

Master  responsible  to  others  for  properly  selecting  his  servants,  199. 
Master  not  liable  when  servant  is  not  acting  within  the   scope  of 

his  employment,  199,  200  (Ed.  n.),  203. 
Master  liable    when    servant  is    acting  within    the    scope    of  his 

employment,  203,  204,  205  (Ed.  n.). 
Wrongful  acts  of  servants  in  course  of  employment,  204,  205. 
Removal  of  persons  from  railroad  trains  by  servants  of  company, 

203  (Ed.  n.). 
Servant  acting  contrary  to  orders,  204,  205  (Ed.  n.). 
Acting  illegally,  204,  205  (Ed.  n.),  206. 
Wanton  and  willfuracts  of  servants  —  how  far  master  is  liable  for, 

205,  206,207,  209. 
Assaults  of  servants  of  railroad  company  upon  passengers  —  liability 

of  company,  207  (Ed.  n.). 
Assaults  by  strangers,  207  (Ed.  n.). 

Assaults  committed  by'officers  of  charitable  institutions,  208  (Ed.  n.). 
Negligence  of  surgeon  of  hospital,  208  (Ed.  n.). 
Whether  the  servant  is  still  in  the  master's  service,  210. 
Master  allowing  servant  to  be  hired  by  another,  liability,  211-214. 
Master  liable  for  negligence  of  under  servant  employed  by  servant, 

211,  212  (Ed.  n). 
Independent  contractor    or  servant,  175,  214,  215  (Ed.  n.),  221,  222 

(Ed.  n.). 
Employer  not  liable  for  negligence  of  independent  contractor,  when, 

214,  215  (Ed.  n.),223. 
Employer  liable  when  he  interferes  with  the  work,  215,  216  (Ed.  n.). 
Exercises  control  over  the  mode  of  doing  the  work,  216  (Ed.  n.), 

218  (Ed.  n.). 
Reserves  power  to  remove  servants,  216  (Ed.  n.). 
Performs  part  of  the  work,  216  (Ed.  n.). 
When  the  work  is  wrongful,  224. 


INDEX.  707 

ReferoncoH  arc  to  Vagon, 

MASTER  AND  SERVANT  —  Continued. 

When  the  work  Is  Itself  a  nuisance,  219  (Ed.  n.). 
The  rule  applies  to  municipal  corporations,  218  (Ed.  n.). 
Though  no  control  Is  exercised  over  the  work,  2ln  (K<1.  n.). 
Contractor  relieved  of  liability   by   placing  work  in  bands  of  sub- 

contractor,  221,223  (Ed.  n.). 
Owners  of  real  property  not  liable  for  negligence  of  contractors  any 

more  than  the  owners  of  chattels,  224. 
Who  is  a  "contractor,"  220. 
Paid  by  day  or  job,  220. 
Liable  to  dismissal,  221. 
Government  servants  not  responsible  for  negligence  of  otberx  *n 

same  employment,  225. 
Employer's  Liability  Act,  225,  251. 

Statutes  affecting  employer  and  employe,  248,  251  (Ed.  n.). 
—  Duties  of  servants,  251. 
Liability  to  third  parties,  251,  252  (Ed.  n.)- 
One  servant  may  recover  against  another  for  negligence,  252. 
Master  and  servant  jointly  liable  for  trespass,  262  (Ed.  n.),  253. 

MATERIALS   EXPLOSIVE. 

See  Dangerous  Things,  13  (Ed.  n.),  285,  286  (Ed.  n.^. 

MENTAL  SUFFERING. 

Not  an  element  of  damages  in  actions  for  injuries  causing  death,  542. 
Allowed  In  some  States,  542. 

MICHIGAN. 

Comparative  negligence  obtains  In,  405  (Ed.  n.). 

Master  must  furnish  safe  appliances,  195  (Ed.  n.). 

Action  forinjuries  causing  death,  539  (Ed.  n.),  5t;9  (Ed.  n.). 

Contributory  negligence  of  owners  of  animals  In  allowing  them  to 

ran  at  large,  120  (Ed.  n.). 
Railroad  companies  required  by  statute  to  fence  tracks,  112  (Ed.  n.). 
Burden  of   proof —  Plaintiff  must  show   negligt-nre  on  the  part  of 

defendant  and  that  he  was  without  fault,  472  (Ed.  n.). 
Negligence  of  parent  not  Imputable  to  child,  515  (Ed.  n.). 

MINES. 

See  SCPPOKT,  7,  58,  9  (Ed.  n.),  70. 

MINISTERIAL  ACTS. 

Officer  liable  for  negligence  where  duties  are  ministerial,  445.  449 
(Ed.  n.). 

MINOR. 

Measure  of  damages,  in  action  for  death  of,  552  (Ed.  n.). 


708  INDEX. 

References  are  to  Pages. 

MINNESOTA. 

Action  for  injuries  causing  death,  570  (Ed.  n.). 

Burden  of  proof  on  defendant  to  establish  plaintiff's  contributory 
negligence,  471  (Ed.  n.). 

Consequential  injuries  to  animals  getting  on  railroad  track,  liability, 
118  (Ed.  n.). 

Negligence  of  parent  imputable  to  child,  514  (Ed.  n.),  517  (Ed.  n.). 

Eailroad  companies  required  to  fence  tracks,  112  (Ed.  n.). 

Statute  applies  to  limits  of  incorporated  cities  and  villages,  115 
(Ed.  n.). 

Sufficiency  of  fence,  116  (Ed.  n.). 

Common  carrier  may  limit  liability,  344  (Ed.  n.). 
MISSISSIPPI. 

Comparative  negligence  obtains  in,  465  (Ed.  n.) . 

Action  for  injuries  causing  death,  539  (Ed,  n.),  570  (Ed.  n.). 

Burden  of  proof  —  Plaintiff  must  show  negligence  on  part  of  de- 
fendant and  that  he  was  without  fault,  473  (Ed.  n.). 

Statutes  affecting  employer  and  employe,  247  (Ed.  n.") 

Negligence  of  parent  not  imputable  to  child,  515  (Ed.  n.). 

MISSOURI. 

Employer's  liability  statutes,  247  (Ed.  n.). 

Master  must  furnish  safe  appliances,  195  (Ed.  n.). 

Action  for  injuries  causing  death.  539  (Ed.  n.),  570  (Ed.  n.). 

Burden  of  proof  on  defendant  to  exhibit  plaintiff's  contributory  neg-» 

ligence,  471  (Ed.  u.). 
Consequential  damages  for  injury  to  cattle  on  railroad  track,  118 

(Ed.  n.). 
Negligence  of  parent  not  imputable  to  child,  515  (Ed.  n.). 
Railroad  companies  required  to  fence  tracks,  112  (Ed.  n.),  122  Ed.  n.). 
What  is  a  lawful  fence,  116  (Ed.  n."). 
Common  carrier  may  limit  liability,  344  (Ed.  n,). 

MITIGATION  OF  DAMAGES. 

Contributory  negligence,  the  doctrine  in  Tennessee,  466  (Ed.  n.). 

The  rule  in  Georgia  unsettled,  463  (Ed.  n.). 
MOB. 

Municipal  corporation  not  responsible  for  destruction  of  property 
by,  150  (Ed.  n.). 

Unless  a  statute  gives  a  remedy,  150  (Ed.  n.). 
MONTANA. 

Burden  on  defendant  to  prove  plaintiff's  contributory  negligence, 
471  (Ed.  n.). 

Action  for  injuries  causing  death,  571  (Ed.  n."). 

Statute  affecting  employer  and  employe,  248  (Ed.  n.). 

Master  taust  furnish  appliances,  195  (Ed.  u.). 


iNDKx.  7oy 

Referenct'H  ur«*  to  Pageit. 

MORE  THAN  ORDINARY  CARE. 
Persons  profosslnp  skill,  20,  69. 
Neglect  of  duties  requlrlnR,  'Jr.. 
For  benetllof  performer,  '2i',i'>,  2G7  (Ed.  n). 
Gratuitous  loan  In  case  of  bailee,  2G(".. 
Owner  uslnp;  property  for  his  own  advantage,  207. 
Public  stands,  etc.,  danger,  2G7. 
Benefit  of  owner,  267. 
Invitation,  2C7,  277,  27'J. 
No  defense,  contractor,  267,  268,  271. 
Volunteer,  208. 
Mandatory,  268,  269  (Ed.  n.). 
Skill,  269, 

List  of  persons  undertaking  to  use  skill,  270. 
Persons  doing  dangerous  things,  270,  285. 
Performing  .statutory  duties,  272. 
Common  carriers,  272,  273. 
When  required  of  owners  and  occupiers  of  real  properly,  274-28S. 

MOTHER. 

Action  by,  for  death  of  son,  537  (Ed.  n.),  .541  (Ed.  n.). 
Evidence  of  pecuniary  condition,  r.41  riM.  n.i. 

MUNICIPAL  CORPORATION. 

Right  of,  to  lateral  support,  I)  (Ed.  n.). 

Liability  of,  as  to  surface  water,  'J4  (ICd.  n.). 

Liability  of,  for  defective  bridges,  141  (F3d.  u.). 

Not  liable  for  injuries  sustained  by  reason  of  omission  to 

discretionary  powers,  149,  294. 
For  omission  to  maintain  suitable  Are  department,  149  (Ed.  n.  i 
For  failure  to  furnish  suUiciint  water  supply  for  extlngui.shmvDt  of 

fires,  150  (Ed.  n.). 
For  injuries  caused  by  negligence  of  ofllcers  of  lire  departrocnt  In 

performing  their  duties,  160  (Ed.  n.). 
For  the  destruction  of  property  by  mobs,  unless  a  statato  glvo-t  * 

remedy,  150  (Ed,  n.). 
For  the  destruction  of  property  to  prevent  the  spread  of  acoiifTui^r.!- 

tlon,  150  (Ed,  n.). 

For  injuries  caused  by  discharge  of  cannon  In  street*,  180  v. .. 

For  negligence  of  officers  In  executing  saulUry  regulationji  prevonl- 

ing  the  spread  of  contagious  disfaM'.><,  151  (Ed.  u.). 
For  failing  to  pa>s  an  ordinance  prohibiting  swlue  from  mnolDK  at 

large,  151  (Ed.  n.). 
Or  to  execute  such  ordinance,  151  (Ed.  u,). 
For  the  negligence  of  its  servants  when  their  aclji  arc  nol  wltblr  the 

scope  of  its  corporatr  pow»  ^^:,  151  (K>!.  n.). 


710  INDEX. 

References  are  to  Pages. 

MUNICIPAL  CORPORATION  —  Continued. 

And  though  the  act  is  within  the  corporate  powers,  if  it  is  not  with- 
in the  scope  of  the  officer's  or  agent's  employment,  the  corporation 
will  not  be  liable,  152  (Ed.  n.). 
But  where  it  is  for  the  private  advantage  of  the  city,  the  city  will  be 
liable  for  the  negligent  acts  of  its  agents,  152  (Ed.  n.). 

—  Excavations  —  Liable  for  injuries  caused  by  dangerous  excava- 
tions in  streets,  though  the  work  is  in  the  hands  of  a  contractor, 
218  (Ed.  n.),  292  (Ed.  n.). 

—  Change  of  grade  —  Not  generally  liable  for  consequential  damages 
caused  by,  301  (Ed.  n.). 

Liable  if  the  work  is  negligently  done,  302  (Ed.  n.). 

Not  liable  for  errors  of  judgment  in  devising  the  plan  of  an  improve- 
ment, 302  (Ed.  n.). 

Nor  for  allowing  surface  water  to  escape  from  the  highway  to  adja- 
cent land,  302  (Ed.  n."). 

Liable  for  collecting  water  in  channels  and  throwing  it  in  a  body  on 
to  adjacent  land,  302  (Ed.  n.). 

—  Sewers  and  drains — Not  liable  for  defect  in  plan  of  sewerage, 
301,  304  (Ed.  n.). 

Nor  for  injuries  caused  by  sewers_of  insufficient  capacity,  303  (Ed. 

n.),  304  (Ed.  n.). 
Liable  for  injuries  caused  by  the  failure  to  repair  or  complete  the 

construction  of,  304  (Ed.  n.). 

—  Awnings  —  Signs,  etc. —  Liable  for  injuries  caused  by  defectively 
hung  awnings  over  sidewalks,  305  (Ed.  n.). 

Not    liable    for   injuries  caused   by   defectively  hung    signs,  305 

(Ed.  n.). 
Nor  for  injuries  caused  by  snow  falling  from  adjoining  roofs,  305 

(Ed.  n.). 
Dangerous  wall,  305  (Ed.  n.). 

—  Coasting  in  streets — Not  liable  for  injuries  caused  by,  306 
(Ed.  n.). 

Unless  prohibited  by  ordinance,  306  (Ed.  n.). 

—  Blasting  in  streets  —  Liable  when  the  work  is  negligently  done, 
305  (Ed.  n.). 

—  Sidewalks  —  Liable  for  injuries  cau8ed;by  defects  in,  306  (Ed.  n.)- 
314  (Ed.  n.). 

Not  liable  for  defect  in  plan  of  construction  of  sidewalk,  307  (Ed.  n.). 

Duty  of  lot  owner  to  repair,  309  (Ed.  n.). 

Snow  and  ice  on  sidewalks  such  defects  as  may  render  city  liable  for 

injuries  received  by  foot  passengers,  309   (Ed.   n.)-311  (Ed.  n.). 
Lot  owner  liable  for  injuries  in  respect  to  coal   holes,  etc.,  309 

(Ed.  n.). 
Contributory  negligence,  314  (Ed.  n.). 


INDEX.  711 

Reforoucos  are  to  TairoH. 

MUNICIPAL  CORPORATION  —  Continurd. 

Deviation  from  highway,  liability  for  InjuritH  received,  815  (Ed.  n.), 
31G  (K(l.  n). 

City  not  bound  to  provide  means  of  access  from  private  property  to 
streets,  317  (Kd.  n.). 

Nor  to  erect  barriers  to  prevent  travelers  from  Htrayln;;  from  high- 
way, 317  (Kd.  n.). 

Nor  to  maintain  railings  about  areas  In  front  of  the  basement  ofllccN 
and  shops  upon  the  streets,  317  (Kd.  n.). 

—  Notice  —  Corporation  must  be  shown  to  have  had  notice  of  defect, 
817  (Kd.  n.). 

Notice  may  be  actual  or  constructive,  818  (Ed.  n.) 

May  be  Inferred  from  character  of  defect  or  leu;;ih  of  time  It  existed, 

318  (Ed.  n.),  319  (Ed.  n.). 
Officers  charged  with  knowledge  or  notice,  320  (Ed.  n.). 

—  Evidence  —  Proximate  cause,  321  (Ed.  a.),  323  fEd.  n.). 

NEBRASKA. 

Comparative  negligence  obtains  In,  4G5  (Ed.  n.). 

Action  for  injuries  causing  death,  .'572  (Ed.  n.). 

Burden  of  proof  on  defendant  to  establish  plaintiffs  contributory 

negligence,  471  (Ed.  n.). 
Negligence  of  parent  not  Imputable  to  child,  616  (Ed.  n.). 
Common  carrier  may  limit  liability,  344  (Ed.  u.). 

NEGLIGENCE. 

Definition,  1,  10,  19. 

Negligence  only  where  breach  of  duty,  2. 

Only  where  rights  are  equal,  4,  66,  9G. 

"Slight,"  "ordinary"  and  "gross,"  21,  22. 

Duties  requiring  ordinary  care,  5('>-2G5. 

More  than  ordinary  care,  2t!G-455. 

Less  than  ordinary  care,  455-458. 

By  owners  of  real  property,  66-123. 

Of  animals,  123-133. 

Of  highways,  133-148. 

By  corporations,  148-158. 

By  masters,  153-251. 

By  servants,  251. 

By  public  officers,  253. 

By  trustees,  254-2C5. 

By  owners  of  dangerous  goods,  285-289. 

By  gas  companies,  289-291. 

By  directors,  323-333. 

By  carriers,  333-409. 

By  innkeepers,  410-419. 


712  INDEX. 

References  are  to  Pages. 

NEGLIGENCE  —  Continued. 
By  physicians,  419-427. 
By  attorneys,  427-440. 
By  bankers,  440-444. 
By  stockbrokers,  444. 
By  public  officers,  445-455. 
No  duty  to  anticipate  negligence,  478. 
Presumptions  of  negligence,  522. 
Bes  ipsa  loquitur,  522. 
Injuries  causing  death  —  Damages  for,  535. 

NEVADA. 

Actions  for  injuries  causing  death,  572  (Ed.  n.). 

Railroad  companies  required  by  statute  to  fence  tracks,  112  (Ed.n.). 

NEW  HAMPSHIRE. 

Negligence  of  parents  not  imputable  to  child,  515  (Ed.  n.). 
Action  for  injuries  causing  death,  539  (Ed.  n.),  573  (Ed.  n.). 
Burden  of  proof  on  defendant  to  establish  plaintiff's  contributory 

negligence,  471  (Ed.  n.). 
Statutory  duty  of  railroads  to  fence  tracks,  112  (Ed.  n.). 
Common  carrier  may  limit  liability,  344  (Ed.  n.). 

NEW  JERSEY. 

Comparative  negligence  denied  in,  465  (Ed.  n.). 
Action  for  injuries  causing  death,  573  (Ed.  n.). 
Burden  of  proof  on  defendant  to  establish  plaintiff's  contributory 

negligence,  471  (Ed.  n.). 
Negligence  of  parent  not  imputable  to  child,  515  (Ed.  n.). 
Master  must  furnish  safe,  appliances,  195  (Ed.  n.). 
Common  carrier  may  limit  liability,  344  (Ed.  n.). 

NEW  MEXICO. 

Actions  for  injuries  causing  death,  574  (Ed.  n.). 

NEW  YORK. 

Comparative  negligence  denied  in,  465  (Ed.  n.). 

Master  must  furnish  safe  appliances,  196  (Ed.  n.). 

Actions  for  injuries  causing  death,  539  (Ed.  n.),  675  (Ed.  n.). 

Contributory  negligence    of  owner  of  cattle  straying    on  railroad 

track,  120  (Ed.  n.). 
Burden  of  proof  in  actions  of  negligence,  473. 
Railroads  required  by  statute  to  fence,  112  (Ed.  n.). 
Railroad    company  not   responsible  for  consequential    damages  to 

stock  straying  on  track,  118  (Ed.  n.). 
Negligence  of  parent  imputable  to  child,  514  (Ed.  n.). 


TABLE    OF    CITATIONS.  713 

Befereucc8  are  to  i'u^^eH. 

NEXT  OF  KIN. 

Actions  for  Injuries  causing  death,  for  bcDcQt  of,  687  (Ed.  n.),  544, 

551!  (Ed.  n.). 
Illegitimate  child,  withio  meaning  of  statute,  535  n. 

NOMINAL  DAMAGES. 

Not  recoverable  In  actions  for  injuries  causing  deatb,  543. 
Recoverable   in  actions  for   Injuries  causing  death  in  this  country, 
643  (Ed,  n.),  561  (Ed.  n.),  5oG  (Ed.  n.). 

NON  8UI  JURIS.     See  Children. 

NON-SUIT. 

When  court  may  direct,  49,  474  (Ed.  n.). 

NORTH  CAROLINA. 

Actions  for  injuries  causing  deatb,  67G  (Ed.  n.). 
Burden  of  proof,  plaintiff  must  .show  negligence  on  part  of  defend- 
ant, and  that  he  was  without  fault,  473  (Ed.  n.). 
Common  carrier  may  limit  liability,  344  (Ed.  n.). 

NOTARIES  PUBLIC. 

Liable  for  protesting  bill   for  non-payment  before  maturity,   451 

(Ed.  n.). 
For  delaying  demand  of  payment  until  after  maturity,  451  (Ed.  n.). 
For  certifying  acknowledgment   without   reading  it,  451  (Ed.  n.), 

462  (Ed.  n.). 
For  delegating  duties  to  another,  452  (Ed.  n.). 
Though  a  notary,  452  (Ed.^n.). 

Bank  generally  not  liable  for  neglect  of  notary,  452  (Ed.  u.;. 
See  Public  Ofkiceks. 

NOTICE.  See,  also,  Knowledge. 
Of  nuisance,  104-108  (Ed.  n.;. 
Of  defective  sewer,  305  (Ed.  n.).  » 

Of  defective  condition  of  highway  of  corporation  necessary  '■•  '■'•'•' 

It,  317  (Ed.  n.),321  (Ed.  n.). 
Actual  or  constructive,  317  (Ed.  n.),  318  (Ed.  n.). 
Officers  chargeable  with,  320  (Ed.  n.). 
May  be  inferred  from  character  of  defector  length  of  time  It  cilutcd, 

318  (Ed.  n.). 
Under  Employers'  Liability  Act,  237-240. 
Jy  carrier  of  arrival  of  goods,  340  (Ed.  n.). 
By  carrier,  limiting  liability,  345  (Ed.  n.),  365  (Kd,  n.). 

NUISANCE. 

Liability  of  landlord  to  tenant  for,  102,  106  (TA.  n.). 

Liability  of  landlord  and  tenant  to  third  persons,  101,  103  (Ed.  n  ), 

lOG  (Ed.  n.). 


714  INDEX. 

References  are  to  Pages. 

NUISANCE  —  Continued. 

Liability  for  nuisance  in  highway,  33  (Ed.  n.). 

Hackney  coach  stand,  138  (Ed.  n.) 

Collection  of  carts  for  reception  of  slops,  138  (Ed.  n.). 

Fruit  stand,  139  (Ed.  n.). 

Brick  wall  of  burnt  building  on  edge  of  sidewalk,  139  (Ed.  u.). 

Barrier  with  spikes  in  highway,  141  n. 

Market  house,  138  (Ed.  n.). 

Van  and  engine  by  side  of  road,  141  n. 

Water  tank  in  center  of  street,  138  (Ed.  n.). 

OBSTRUCTIONS.    See  Highways. 

OFFICER.    See  Pttblic  Officer;    Government  Officer;    Notaries 
Public;  Judges;  Recorders;  Clerks. 

OHIO. 

Action  for  injuries  causing  death,  539  (Ed.  n.),  576  (Ed.  n.). 
Consequential  damages  caused  by  change  of  grade  of  streets,  302 

(Ed.  n.). 
Burden  of  proof  on  defendant  to  establish  plaintiff's  contributory 

negligence,  473  CEd.  n.). 
Railroad  companies  required  to  fence  tracks,  112  (Ed.  n.). 
Negligence  of  parent  not  imputable  to  child,  514. 
Illegitimate  child  within  meaning  of  statute  giving  actions  for  injuries 

causing  death,  535  n. 

OKLAHOMA. 

Actions  for  injuries  causing  death,  577  (Ed.  n.). 

OMNIBUS. 

Conductor  of,  not  a  "  workman  within  Employers'  Liability  Act,  229. 

Racing,  204  n. 

Assaults  on  guards  of,  203  n. 

ONUS. 

See  Burden  of  Proof,  470  (Ed.  n.). 

ORDINARY  CARE. 

Neglect  of  duties  requiring,  8  (Ed.  n.),  14-19,  25,  56. 

Mutual  benefit,  57. 

Employment  of  services  for  reward,  57. 

Bailee  for  hire,  57,  58  (Ed.  n.). 

Skilled  labor,  58. 

ORDINARY  NEGLIGENCE.    See  Ordinary  Cabk. 

ORDINANCE. 

Municipal  corporation  not  liable  for  failing  to  pass  or  execute,  151 
(Ed.  n.). 


INDEX.  71.'> 

Ueforencos  arc  to  I'airps. 

ORDINANCE—  CofUmufrf. 

Keqiiirlnp  owners   to   keep   slclcwalk«   « k;ir   oi  m,..w    n,  !    icr,  aiO 
(Kil.  u.). 

OREOON. 

Action  for  injuries  causing  death,  577  (Ed.  u.). 

riaintlff  must  show  himself  without  fault  and  defendant  negligent, 

473  (Ed.  n.)- 
Railroad  companies  required  to  fence  trackR,  112  (Ed.  n.;. 
Common  carriers  may  limit  liability,  344  (Ed.  n.). 

PARENT.     See  Children. 

Action  by  for  loss  of  support,  538,  541  (Ed.  n.). 
Measure  of  damages  In  action  for  death  of,  552  (Ed.  n.). 

PARTNER. 

Attorney  or  solicitor  liable  for  negligence  of,  429,  433  (Ed.  n.). 

PARTY  WALL. 

Right  to  support,  when  title  to  adjoining    parcels    derived    fr<im 
common  owner,  7  (Ed.  n.). 

PASSENGER.     See  Railway  Company. 

PATENT  AGENT. 

Negligence  by,  440. 

PENALTY. 

Does  not  bar  action,  323. 

PENNSYLVANIA. 

Comparative  negligence  denied  in,  466  (Ed.  n.). 

Rule  as  to  burden  of  proof,  474  (Ed.  n.). 

Common  carriers  may  limit  liability,  344  (Ed.  n.). 

Negligence  of  parent  not  imputable  to  child,  615  (Ed.  n.). 

Action  for  injuries  causing  death,  539  (Ed.n.),  577  (Ed.  n.). 

Next  of  kin  not  within  provisions  of  statute  giving  right  of  action  in 

case  of  death,  539  (Ed.  n.). 
Statute  affecting  railway  company  aud  employe,  constrnction,  248. 

250  (Ed.  n.). 
Master  must  furnish  safe  appliances,  196  (Ed.  n.). 

PERIL. 

Land-owner  bound  to  keep  certain  things  at,  83. 

Fire,  84,  85  (Ed.  n.). 

Poisonous  trees,  91. 

Dangerous  substance,  83. 

Water,  92. 

Savage  animal,  123,  125  (Ed.  n.). 


716  INDEX. 

References  are  to  Pages. 

PERSONAL  REPRESENTATIVES. 

Action  by  for  injuries  to  employes  causing  death,  243  (Ed.  n."),  et 
seq.,  556  (Ed.  n.),  et  seq. 

PHYSICIANS  AND  SURGEONS. 
Neglect  of  duties  by,  419. 

—  Veterinary  surgeon,  420  (Ed.  n.). 

Could  not  at  common  law  recover  tbeir  fees,  420,  422  (Ed.  n.). 

Unless  there  was  a  special  contract,  420,  432  (Ed.  n.). 

A  surgeon  might  recover  fees  or  a  physician  acting  as  such,  420. 

American  rule,  422  (Ed.  n.). 

Liability  for  negligence,  420,  422  (Ed.  n.). 

Physicians  acting  gratuitously,  420,  421,  423  (Ed.  n.). 

A  surgeon  not  an  actual  insurer,  421,  423  (Ed.  n.). 

Must  show  proper  degree  of  skill,  421,  423  (Ed.  n.). 

Unqualified  person  acting  as  physician,  421,  422. 

Non-expert  liable  for  gross  negligence,  422  (Ed.  n.),  424  (Ed.  n.). 

Physician  taking  unprofessional  man  to  attend  a  confinement  case, 

422  (Ed.  n.). 
Physician  does  not  undertake  to  exercise  highest  degree  of  skill,  421, 

422,  423  (Ed.  n.). 
Not  liable  for  honest  errors   of   judgment  in  doubtful  cases,  423 

(Ed.n.). 

—  Criminal  liability  —  Physician  acting  in  good  faith  not  criminally 
liable  for  death  of  patient,  424  (Ed.  n.). 

Unless  he  acts  recklessly,  424  (Ed.  n.). 

Standard  of  skill  not  measured  by  school  of  practice  to  which  he 

belongs,  424  (Ed.  n.). 
Varies  in  different  localities  and  at  different  times,  424  (Ed.  n.),  425 

(Ed.  n.). 
According  to   the  character  of    the  disease    and  temperament  of 

patient,  426  (Ed.  n.). 

—  Contributory  negligence  —  Patient  failing  to  carry  out  instructions 
of  physician,  426  (Ed.  n.). 

Aggravation  of  disease  by  improper  treatment  of  those  in  charge, 

426  (Ed.  n.). 
Action  against  firm  of  physicians  for  malpractice,  426  (Ed.  n.). 

PLATFORM. 

Riding  upon  platform  of  cars,  52  (Ed.  n.),  376  (Ed.  n.). 

Railway  companies    must   keep    platform    in  safe  condition,  394 

(Ed.  n.). 
Liable  for  injuries  caused  by  defective  platforms,  394  (Ed.  n.). 
For  failure   to  keep  them  clear  of  snow  and  ice,  394  (Ed.  n.),  395 

(Ed.n.). 


iM)i;x.  717 

ReferencoH  ur«*  lo  TafreH. 
POISON. 

Liability  of  vendor  to  tlilrd  person  for  sale,  11,  13  (Kd.  n.;. 
As  between  vendor  and  vendee,  vendor  not  liable  for  oinlhHion  to 
label  drug  when  he  had  warned  vendee  of  lla  dangoroutt  character, 
13  (Kd.  n.). 
Poisonous  trees  on  land,  'Jl. 

POLICE. 

Municipal  corporation  not  responsible  for  torts  of,  152  (Ed.  n). 

POSTMASTER. 

Not  liable  for  negligence  of  subordinates,  450  ("Ed.  n.). 

POVERTY  AND  WEALTH. 

In  actions  for  injuries  causing  death,  evuuucf  of  ptcuninry  condi- 
tion of  deceased's  family,  554  (Ed.  n.). 
Of  pecuniary  condition  of  defendant,  554  (Ed.  n.). 

PREMISES,     ^ee  Land  and  Railway  Compaxiks. 

PRESCRIPTION. 

Right  to  support  of  buildings  required  by,  6  (Ed.  n.). 

PRESUMPTION  OF  NEGLIGENCE. 

That  defendant  will  act  with  ordinary  care,  478. 
That  plaintiff  will  act  with  ordinary  care,  -Mej. 
lies  ipsa  loquitur,  522,  526  (Ed.  n.). 
Change  of  course  of  action  presumes  negligence,  523. 
Unusual  occurrence,  523,  524  (Ed.  n.). 
Accident  must  be  connected  with  defendant,  524. 
Cases  resting  in  contract — Happening  of  accident  prima  fade  tv\- 
dence  of  negligence,  524  (Ed.  n.),  52ti  (Ed.  J).\ 

PRIMA  FACIE  EVIDENCE. 

Evidence  of  negligence,  happening  ol   accuit-nt  in  <  ust  ■.  r.-,stiiig  iii 
contract,  52G  (Ed.  n.;. 

PRIVITY  OF  CONTRACT.     See  Contract. 

PROFESSION  OF  SKILL.     See  Physicians,  Attoiu«Y8. 

PROMOTERS  OF  COMPANIES. 
Liable  for  negligence,  333. 

PROPERTY.     See  Land. 

PROXIMATE  AND  REMOTE  CAUSE. 

The  damages  must  be  the  ordinary  or  probable  conseqacnce  of  the 

negligent  act,  3,  26. 
Illustrations,  2(1,  37. 
Where  there  are  several  proximate  and  efllcient  causes  cootribuUug 


718  INDEX. 

References  are  to  Pages. 

PROXIMATE  AND  REMOTE  CAUSE  —  Continued. 

to  an  injury  it  cannot  necessarily  be  attributed  to  one  without 
whose  operation  it  would  not  have  happened,  28. 

Remote  cause  —  Illustrations,  34-37  (Ed.  n.). 

Intervention  of  third  person  —  If  the  negligence  of  defendant 
would  not  have  caused  the  injury,  but  for  the  intervening  negli- 
gence of  a  third  person,  defendant  will  not  be  liable,  28,  37-39 
(Ed.  n.). 

Intervention  of  plaintiff —  Contributory  negligence,  39  (Ed.  n.). 

Accidental  injury  in  escaping  from  sudden  peril,  39  (Ed.  n.). 

Unskillful  treatment  of  physician  or  surgeon,  when  no  defense,  39 
(Ed.  n."). 

That  plaintifE  was  engaged  in  violating  the  law  at  the  time  of  the 
injury  does  not  necessarily  bar  his  right  of  recovery,  39  (Ed.  n.). 

Intervention  of  defendant,  40  (Ed.  n.). 

Intervention  of  the  forces  of  nature,  28,  29,  41  (Ed.  n.).  • 

Injuries  from  exposure  to  the  weather  in  consequence  of  defendant's 
negligence,  41  (Ed.  n.). 

Tendency  to  disease  —  the  aggravation  of  the  injury  by  reason  of  a 
tendency  to  disease,  no  defense,  43  (Ed.  n.). 

Fires  negligently  started  and  carried  by  force  of  the  wind  or  other 
natural  agency  to  property,  45  (E'1.  n.). 

Illustrations,  45,  47  (Ed.  n.). 

The  doctrine  of  Ryan  v.  N.  Y.,etc.,  R.  Co.,  andPenn.  R.  Co.  ».  Kerr, 
disapproved,  46  (Ed.  n.). 

Act  of  God,  when  a  defense,  28,  29,  41  (Ed.  n.),  47  (Ed.  n.). 

Act  of  God  —  where  goods  to  be  transported  by  common  carriers  are 
delayed  through  their  negligence  and  afterwards  destroyed  by  aot 
of  God,  the  delay  is  not  the  proximate  cause  of  the  loss,  47 
(Ed.  n.). 

Where  an  unforeseen  cause  combines  with  defendant's  unlawful  act 
in  producing  the  injury  defendant  will  be  liable,  48  (Ed.  n.). 

Intervention  of  time  or  space,  28. 

Of  injuries  in  highways,  323  (Ed.  n.). 

PUBLIC  CATERER. 

Liable  for  selling  unwholesome  food,  418  (Ed.  n.). 

PUBLIC  COMPANIES.     /See  Directors  of  Public  Companies. 

PUBLIC    OFFICERS.     See   Judges;    Sheriffs;     Clerks;    Notaries 
Public;  Recorders,  Etc. 
Neglect  of  duties  of,  253,  445. 

Where  duties  are  ministerial,  liable  for  negligence,  445,  449  (Ed.  n.). 
What  duties  ministerial  and  what  judicial.  445  n,  449  (Ed.  n.),  450 
CEd.  n.;. 


I.NDKX.  711» 

KeferencoH  uro  to  Pagei. 
PUBLIC  OFFICERS  —  Continued. 

Bound  to  exercise  care  In  selecting  snbordinatcfl,  44C,  450  (Ed.  n.). 
Officers  of  government  not  responsible  for  negllgenco  of  deputies  or 

subordinates,  44*;,  450  (Ed.  n.). 
Postraastors,  450  (Ed.  n.). 

Mail  contractors,  liability  for  negligence  of  agents,  450  (Ed.  n.). 
Liability  of  public  olUcer  for  negligence,  445,  449  (Ed.  n.). 
Notaries  puljlic,  liability,  448,  450  (Ed.  n.),  451  (Ed.  n.)- 
Sheriffs,  duties  ministerial,  liability  for  negligence,  448,  463  (Ed.  n.). 
Measure  of  damage  for  sheriff's  negligence,  455  (Ed.  n.). 
Election  officers,  450  (Ed.  n.). 
Clerks  of  courts,  recorders,  450  (Ed.  n.). 
Judges,  449  (Ed.  n.),  451  (Ed.  n.). 
Magistrates,  451  (Ed.  n.),  455. 

PUNITIVE  DAMAGES.  ^ 

Id  actions  for  injuries  causing  death,  544  (Ed.  n.). 

QUESTIONS  OF  LAW  AND  FACT.     Ser  Lxw  ani.  Fact. 

RAILWAY  COMPANIES. 

Common  carriers,  333,  336  (Ed.  n.). 
Act  of  God,  333,  33G  (Ed.  n.). 
Public  enemy,  338  (Ed.  n.J. 
Carrier's  Act,  1830,  334. 
Inherent  defect  in  goods,  338  (Ed.  n.). 
Arrival  of  goods  at  destination,  340  (Ed.  n.),  334. 
Discrimination  in  rates,  339  (Ed.  n.). 
Tender  of  reasonable  sum  for  carriage,  34'J. 
Limiting  liability  by  contract,  342,  344  (Ed.  n.),  34r.  rF-l  n  * 
Posting  notices,  342,  345  (Ed.  n.),  347  (Ed.  n.). 
Railway  and  Canal  Traffic  Act,  1854,  349. 
Reasonable  conditions,  343,  347  (Ed.  n.). 
Unreasonable  conditions,  347,  348  (Ed.  n.). 
Carriage  of  horses,  348. 

Live  stock,  carriage  of,  349,  361  (Ed.  n.),  354  (Ed.  n.). 
Damages,  353  (Ed.  n.),  35G. 

Conditions  affecting  transportation  of,  354  (Eil.  n.),  865  (Ed.  o.). 
Delay,  caused  by  strikes,  riots,  35i;  (Ed.  n.). 
Damages  for  loss  of  or  injury  to  goods.  350,  359  (Ed.  n.) 
Forwarding  goods  beyond  line,  358.  359  (Ed.  n.). 
Not  liable  beyond  its  own  rouU',  359,  360  (Ed.  n.). 
Liability  may  be  varied  by  contract,  3(J1. 
—  Baggage,  3G1,  303  (Ed.  n.). 
Carriers  insurers  of,  3GI,  363  (Ed.  n.)- 


720  INDEX. 

References  are  to  Pages. 

RAILWAY  COMPANIES  —  Continued. 

Condition  tliat  no  baggage  shall  be  taken,  362. 
Baggage  deposited  in  cloak  room,  363. 
Passenger  retaining  control  over,  362. 

Liability  extends  to  receiving   and  delivering  —  liability  as  ware- 
housemen, 363,  367. 
Limiting  liability  for  passengers'  baggage,  363. 
Notices  on  tickets,  365  (Ed.  n.). 
Arrival  of  baggage,  366  (Ed.  n.). 

—  Passengers  —  Railway  companies  not  insurers  of,  but  liable  for 
negligence,  367,  371-373  (Ed.  n.). 

Bound  to  exercise  highest    degree  of  care  and  vigilance,  379,  373 

(Ed.  n,). 
Bound  to  construct  their  works  to  resist  ordinary  storms. 
Not  liable  for  latent  defects  not  discoverable  by  best  known  tests, 

374  (Ed.  n.). 
Not  bound  to  provide  against  unforeseen  causes,  374  (Ed.  n.). 
Liability  of  company  having  running  powers,  371  et  seq. 
Of  lessor  and  lessee  company  for  negligence,  371  (Ed.  n.). 
Duty  as  carrier  arises  out  of  contract,  368. 
Election  of  passenger  to  sue  in  contract  or  tort,  368. 
Whether  master  can  sue  when  servant  is  injured,  368. 

—  Contributory  negligence  of  passenger,  375  (Ed.  n.),  388  (Ed.  n.). 
Boarding  moving  train,  53  (Ed.  n.),  375  (Ed.  n.). 

Riding  on  platform  of  car,  52  (Ed.  n.),  376  (Ed.  n  ). 

Riding  on  platform  of  street  car,  52  (Ed.  n.),  376  (Ed,  n.). 

Projecting  arm  from  window,  52  (Ed.  n.),  378  (Ed.  n.). 

Alighting  from  moving  train,  54  (Ed.  n.),  378  (Ed.  n.),  379  (Ed.  n.). 

Calling  out  name  of  station,  379  (Ed.  n.),  399. 

Opening  and  shutting  doors,  383,  400. 

Riding  in  baggage  car,  381  (Ed.  n.). 

Riding  on  freight  train,  383  (Ed.  n.). 

Riding  on  engine,  382  (Ed.  n.). 

—  Free  passengers — Injuries  to,  384  (Ed.  n.). 
Liability  same  as  to  passengers  for  hire,  384  (Ed.  n.). 
Drover  traveling  on  free  pass,  384  (Ed.  n.). 
Express  agents,  385  (Ed.  n.). 

Postal  clerks  or  mail  agents,  385  (Ed.  n.). 

Passes  purely  gratuitous,  385  (Ed.  n.),  388  (Ed.  n.). 

Distinction  as  to  liability  in  case  of  gross  and  ordinary  negligence, 

385  (Ed.  n.). 
Passenger  assuming  risk  of  accident,  386  (Ed.  n.). 
Employe  riding  to  and  from  his  home  on  free  pass,  387  (Ed.  n.). 
Newsboy  selling  papers  on  train,  388  (Ed.  n.). 
One  voluntarily  assisting  express  agent,  388  (Ed.  n.)  . 


INDKX.  7lM 

UeferencoK  arc  to  rn(;rH. 
UAILWAY  COMPANIES  —  Continurd. 

—  Use  of  pninises —Negligence  If  Bomethlng  unuHu&l  happcnii, 
388,  S'Jl  (K(l.  n.),  396. 

Invitutlon  upon  premises,  890,  893  (Ed.  n.). 

Absence  of  8l;:nal8,  31)0  ». 

Construction  of  works,  31)1  (Ed.  n.),  ;5U2. 

Railway  companies  must  provide  reasonable  accomroodatlODB  at 
stations  for  passengers,   393  (Ed.  n.). 

Must  keep  platforms  and  approaches  in  safe  condition,  394  (Ed.  n.). 

Liable  for  Injuries  caused  by  defective  platforms,  ;j'J4  (Eil.  n.). 

For  failure  to  keep  them  clear  of  snow  and  Ice,  394  (Ed.  n.),  896 
(Ed.  n.). 

For  failure  to  properly  light,  SOU  (Ed.  n.). 

They  do  not  owe  the  same  care  to  licensees,  395  (Ed.  n.). 

But  their  obligation  extends  to  those  having  business  with  the  com- 
pany, 395  (Ed   n.),  396  (Ed.  n.). 

Must  make  platforms  of  sufficient  width,  396  (Ed.  n.). 

Injury  to  hackman  at  depot,  'SW  (Ed.  n.). 

To  passenger  struck  by  mall  bag  thrown  from  a  mall  car,  396  (Ed.  o.) . 

To  one  who  went  to  depot  to  meet  his  wife  on  incoming  train,  896 
(Ed.  n.),  397  (Ed.  n.). 

—  Use  of  trains  and  carriajjes,  307  (Ed.  n.),  399  (Ed.  n.). 

Injury  to  passeugers  by  fall  of  clothes-wringer  in  rack  over  seat, 

397  (Ed.  n.). 
Injury  by  door-jamb,  400,  401  (Ed.  n.). 
Overshooting  platform,  400. 

—  Railway  fences,     6'ee  Fences. 

—  Railway  llres.     See  Firks. 

—  Railway  crossings  —  Railway  companies  not  required  to  fence  at 
crossings  of  public  streets  or  towns.  91,  113  (Ed.  n.). 

At  highway  crossings,  91,  113  (Ed.  n.). 

At  private  roads  connecting  with  public  highways,  115  ^Ed.  n.). 
Not  liable  for  obstruction  or  diversion  of  surface  water,  95  (Ed.  n.). 
One  approaching  must  look  and  listen  for  trains,  50  (Ed.  n.),  49^. 
Negligence  per  se  to  drive  over  In  view  of  approaching  trains,  61 

(Ed.  n.),  498  (Ed.  n.). 
Duty  of  driver  of  vehicle,  51  (Ed.  n.),  499  (Ed.  n.). 
Omission  to  ring  bell  or  sound  whistle,  601  (Ed.  n.). 
Does  not  excu.'^e  traveler  from  looking  or  llj»tenlnjf,  601  (Ed.  n 
Though  train  la  running  at  a  dangerous  and  unlawful  rat«  of  ^peid, 

602  (Ed.  n.). 
It  is  not  material  that  one  did  not  look  or  listen,  if  he  could  not  have 

seen  or  heard  the  train,  502  (Ed.  u.). 
It  is  no  excuse  that  he  was  deaf  and  could  not  hear,  603  (Ed.  n.). 
Or  blind,  603  (Ed.  n.). 

4«; 


722  IXDEX. 

Eeferences  are  to  Pages. 

RAILWAY  COMPANIES  —  Continued. 
Or  intoxicated,  503  (Ed,  n.). 
Whether  iDtozication  is  contributory  negligence  usually    for   the 

jury,  503  (Ed.  n.). 
The  rule  is  different  in  case  of  children  of  tender  years  and  the  old 

or  infirm,  503  (Ed.  n.). 
Towards  them  railroad  companies  owe  a  greater  degree  of  care,  503 

(Ed.  n.),  504  (Ed.  n). 
Omission   to  give  signals  must  be  proximate  cause  of  injury,  604 

(Ed.  n.). 

—  Flagmen  at  —  No  legal  obligation  in  absence  of  statute  to  keep 
flagmen  at  crossings,  504  (Ed.  n.). 

Invitation  to  cross,  504  (Ed.  n.),  505  (Ed.  n.). 

Withdrawal  of  flagman  where  he  is  usually  kept  at  crossing  negli- 
gence, 505  (Ed.  n.). 
Duty  of  traveler  when  crossing  is  dangerous,  605  (Ed.  n.). 
Where  view  of  track  is  obstructed,  505  (Ed.  n.),  506  (Ed.  n.). 
Duty  of  company,  50f>  (Ed.  n.). 

—  Trespassers  —  Walking  on  track,  51  (Ed.  n.). 
Stepping  in  front  of  locomotive,  51  (Ed.  n.). 
Lying  on  track,  52  (Ed.  n.). 

Crawling  under  train,  52  (Ed.  n.). 

Shipper  should  give  notice  of  dangerous  goods,  287  (Ed.  n.). 

Railroad  companies  held  under  no  obligation  towards  trespassers, 

518  (Ed.  n.). 
They  owe  greater  care  toward  children  than  adults,  518  (Ed.  n.). 

—  Employes  —  Assume  the  risks  of  service,  164,  167  (Ed.  n.). 
Must  repair  bridges  over  highways,  143. 

Injuries  by  low  bridges  while  standing  on  top  of  cars,  168  (Ed.  n.). 

Out  of  the  line  of  employment,  168  (Ed.  n.). 

When  employe  is  ignorant  of  dangerous  character  of  structure,  168 

(Ed.  n.),  170  (Ed.  n.). 
Engineer  killed  by  signal  post,  while  leaning  out  of  engine,  171 

(Ed.  n.). 
Brakeraan  on  moving  freight  train  struck  by  telegraph  pole,  171 

(Ed.  n.). 
Brakeman  and  car  couplers  assume  the  risk  of  injuries  in  coupling 

cars,  172  (Ed.  n.). 
When  loaded  with  projecting  timbers,  172  (Ed.  n.). 
Employe  pat  into  more  dangerous  business  against  protest,  172 

(Ed.  n.). 
Remaining  in  service  with  knowledge  of  risk,  172  (Ed.  n.). 
Promise  by  master  to  repair  defect,  494  (Ed.  n.). 
Liability  for  injuries  sustained  by  defective  cars,  175  (Ed.  n.). 
By  defective  cars  of  other  companies,  161  (Ed.  n.). 


IM>K.\.  723 

ReferenceH  are  to  Pages. 

KAILWAY  COMPANIES  —  Continued. 

Company    bound    to  Inform  employe   ol  extraordinary  riskn,    161 

(Ed.n.),  1C5  (Ed.  n.). 
Waiver  of  riyht  of  action  for  Injuries,  16C. 
Employe  riding  to  and  from  his  home  on  free  pass,  387  (Ed.  n.). 
—  Statutes  —  Affecting     rights     of    railroad    employcM,   225,    243, 

(Ed.  n.). 
See  Sleeping  Car  Company  Stock. 

REAL  PROPERTY. 

Neglect  of  owners  and  occupiers  of,  65,  274. 

Owners  and  occupiers  required  to  use  more  than  ordinary  care, 

when,  274,  275  (Ed.  n.). 
See  Land,  Etc.,  Owners  of. 

RECORDERS. 

Liability  for  negligence,  452  (Ed.  n.). 

Of  deputies,  452  (Ed.  n.). 

Searching  for  liens,  liability,  453  (Ed.  n.). 

Extends  only  to  the  party  who  employs  them,  453  (Ed.  n.). 

RELEASE. 

Of  right  of  action  by  servant  for  Injuries,  16G,  173  (Ed.  n.). 

REMEDY. 

Of  adjoining  owner,  8  (Ed.  n.  ). 

REMOTE  CAUSE. 

(Sec  Proximate  and  Remote  Cause,  30,  31  (Ed.  n.). 

RES  IPSA   LOQUITUR. 

In  real  property  cases,  276. 

Change  of  course  of  action  presumes  neeligence,  522,  523. 
Unusual  occurrence,  523,  524  (Ed.  n.),  52G, 
Things  left  to  get  out  of  order,  524. 

Cases  resting  In  contract,  happening  of  accident  prima  facie  evi- 
dence of  negligence,  526-529  (Ed.  n.). 
Cases  not  resting  In  contract,  526  (Ed.  n.),  533  (Ed.  n.). 
Rule  not  applicable  to  relation  of  contract  or,  626,  633  (Ed.  n.). 

RESPONDEAT  SUPERIOR.      See  Master  and  Skrvant  and  .Munic- 
ipal Corporation. 

RHODE  ISLAND. 

Employer's  liability  statutes,  250  (Ed.  n.). 

Actions  for  injuries  causing  death,  5;{9  (Ed.  n.),  578  (Ed.  n). 

Burden  of  proof  on  defendant  to  establish  plaintiff  '«  contributory 
negligence,  471  (Ed.  n.). 
RIDING.     See  Law  of  the  Road. 


724  INDEX. 

Refereuces  are  to  Pages. 

EIDING  ON  PLATFORM  OF  CAR,  52  (Ed.  n.),  37G  (Ed.  n.)- 
When  negligence  pej'se,  52  (Ed.  n.)- 
With  consent  of  brakeman,  52  (Ed.  n.). 
When  car  is  crowded,  52  (Ed.  n.). 
No  vacant  seats,  376  (Ed.  n.). 
When  notice  is  posted  up  forbidding  it,  52  (Ed.  n.). 
On  platform  of  street  car,  376  (Ed.  n.). 

ROADS.     See  Highway,  Law  of  the  Road. 

ROMAN  LAW. 

Division  of  duties  according  to,  21,  22, 

RULE  OF  THE  ROAD.     See  Law  of  the  Road. 


SAFE  DEPOSITARIES. 

Bound  to  ordinary  care,  60  (Ed.  n.). 

SCIENTER.     See  Knowledge. 

SERVANT.     See  Master  and  Servant. 

SEWER. 

Municipal  corporation  not  liable  for  defect  in  plan  of,  304  (Ed.  n.). 
For  injuries  caused  by  sewers  of  insufficient  capacity,  304  (Ed.  n.). 
Liable  for  injuries  caused  by  failure  to  repair  or  complete  construc- 
tion of,  305  (Ed.  n.). 

SHERIFFS. 

Bound  to  exercise  ordinary  skill,  253,  453  (Ed.  n.). 

Liable  for  failure  to  levy  execution,  453  (Ed.  n.). 

For  neglect  to  attach  property,  453  (Ed.  n.). 

For  making  insnfficient  levy  of  attachment,  453  (Ed.  n.). 

For  failure  to  return  execution,  453  (Ed.  n.). 

For  making  inadequate  returns,  453  (Ed.  n.). 

For  failure  to  secure  enough  to  satisfy  requirement  of  writ,  453 

(Ed.  n.). 
For  failure  to  collect  amount  paid  for  property  at  execution  sale,  454 

(Ed.  n.). 
For  money  received  which  they  neglect  or  refuse  to  pay  over  on 

demand,  454  (Ed.  n.). 
For  allowing  prisoner  to  escape,  454  (Ed.  n.). 
Not  liable  for  refusing  to  issue  execution  which  is  not  suppMted  by 

a  valid  judgment,  454  (Ed.  n.). 
For  non-service  upon  non-resident  when  directions  of  plaintiff  were 

followed,  454  (Ed.  n.). 
Not  liable  for  failure  to  make  levy  of  execution  for  fourteen  days 

after  it  is  received,  454  (Ed.  n.). 


I.NDKX.  725 

Refereiicps  aro  lo  rnpos. 

SHERIFFS  —  Contimtcd. 

Liable  for  ncf^lect  of  deputy  to  pay  over  money,  ir>rt  (Va\.  n.). 

For  default  of  deputy  in  making  an  improper  return  of  a  writ,  455 

(Ed.  n.). 
Not  liable  for  neglect  of  deputy  when  acting  as  deputy  of  succeed* 

Ing  slieriff,  455  (Ed.  n.). 
Nor  for  unotllcial  act  of  deputy,  451,  455  (Ed.  n.). 
Not  insurer  of  Bulliciency  of  sureties  on  replevin  bond,  449. 
Measure  of    damages    in   action  for  failure    to  collect  debt,  465 

(Ed.  u.). 
Wrongfully  levying  in  and  aelling  personal  property,  456  (Ed.  n.;. 

SFIOPS. 

Invitation  to  enter,  280  (Ed.  n.). 

SIDEWALKS. 

Abutting  owner  liable  for  defective  coal  holes  in  82  (Ku.  n.). 
Municipal  corporation  liable  for  iujuries  causeil  by  defects  in,  306 

(Ed.  n.). 
Liable  for  defect  in  plan  of  construction,  30G  (Ed  n.),  307  (Ed.  n.). 
Lot  owner  not  liable  for  injuries  caased  by  defects  In,  308  (Ed.  n.), 

309  (Ed.  n.). 
For  injuries  caused  by  accumulations  of  snow  and  ke,  309  (Ed.  n.). 
Lot  owner  liable   for   injuries    in   respect  to  coal  boles,  etc.,  809 

(Ed.  n.). 
Ordinances  requiring  owners  or  occupants  to  keep  sidev/alks  clear 

of  suow  and  ice  under  a  penalty  constitutioual,  310  (Ed.  u.). 
Snow  and  ice  in  uneven  and  rounded  form,  311  (Ed.  n.). 
Mere  slipperiucss  of  caused  by  accumulations  of  suow  and  ice,  311 

(Ed.  n.). 
Contributory  negligence  in  walking  over,  314  (Ed.  n.). 
Knowledge  of  defects,  314  (Ed.  n.),  315  (Ed.  n.). 
Passing  over  in  dark,  3U  (Ed.  n.),  315  (Ed.  n.),  310  (Ed.  n.). 
Injuries  received  by  deviating  from,  316  (Ed.  n.). 
Notice  necessary  to  hold  municipal  corporation  liable  for  injuries 

caused  by  defects  in,  317  (Ed.  n.). 
Actual  and  constructive  notice,  317  (Ed.  n.),  320  (Ed.  n.). 
Officers  chargeable  with,  320  (Ed.  n.). 
Evidence  of  other  accidents  at  same  place,  321  (Ed.  n.). 
Proximate  cause,  323  (Ed.  n.). 

SIGNS. 

Owner  liable  for  injuries  caused  by  fall  of,  305  (Ed.  n.). 

SKILL. 

Defined,  58. 

See  MoKK  than  Okdi.naky  Cark. 


726  INDEX. 

References  are  to  Pages. 

SLEEPING  CAR  COMPANY. 

Not  a  common  carrier,  401  (Ed.  n.). 

Nor  innkeeper,  401  (Ed.  n.),  402  (Ed.  n.). 

Distinction  between  and  innkeeper,  402  (Ed.  n.). 

Liability  for  loss  of  property,  403  (Ed.  n.),  408  (Ed.  n.). 

Liability  for  injuries,  408  (Ed.  n.). 

Liability  of  railroad  company,  409  (Ed.  n.). 

Passengers  riding  on  free  pass   having  purchased   drawing  room 

ticket,  410  (Ed.  n.),  411  (Ed.  n.). 
Not  liable  for  detention  of  train,  409  (Ed.  n.). 

SLIGHT  NEGLIGENCE.     See  More  than  Ordinary  Care. 

SNOW.     See  Sidewalk. 

SOCIETY. 

Loss  of,  not  an  element  of  damages  in  actions  for  injuries  causing 
death,  542. 

SOLICITORS.     See  Attorneys. 

SOUTH  CAROLINA. 

Common  carriers  may  limit  liability,  345  (Ed.  n.). 

Comparative  negligence  denied  in,  466  (Ed.  n.). 

Burden  is  on  defendant  to  prove  plaintiff's  contributory  negligence, 

471  (Ed.n.). 
Actions  for  injuries  causing  death,  579  (Ed.  n.). 

SOUTH  DAKOTA. 

Master  must  furnish  safe  appliances,  196  (Ed.  n.). 
Actions  for  injuries  causing  death,  579  (Ed.  n.). 

SPRING  GUN. 

Liability  for  injury  to  trespasser  by,  80. 

One  may  protect  his  shop  from  burglary  by  setting  up,  80  n. 

SQUIB  CASE. 

Thrown  from  one  to  another  proximate  cause,  26  n. 

STAGE  COACHES. 

Proprietors  bound  to  provide  roadworthy  vehicl«s,  392,  393  (Ed.n.). 
Liable    for   defects   discoverable  upon    minute  examination,    393 
(Ed.  n.). 

STATUTES. 

Allowing  physicians  to  sue,  420,  422  (Ed.  n.). 

Carriers'  Act,  334. 

Employers'  Liability  Act,  225,  243  (Ed.  n.). 

Judicature  Act,  254. 

Lord  Campbell's  Act,  535. 

Act  protecting  innkeepers,  419. 


INDEX.  727 

Roforenros  nro  to  Pnifps. 

STATUTES  —  Continued. 

Statute   giving   right  of  action  to  person   Injured  by  (elooy,  546 

(Ed.  n.). 
liaihvay  Act,  349. 

Act  relating  to  dangerous  good.i,  288. 
Statutes    requiring    railroad   companies  to   fence  tracks,  110,    III, 

(Ed.  n.),  113  (Ed.  n.). 
Solicitor's  Act,  43lt. 

Statutes  affecting  employer  and  employe,  225,  243  (Kd.  n.). 
Railway  companies  and  employes,  22G,  243  (Ed.  n.). 

STATUTORY  DUTIES. 

Corporations  performing,  291. 

Plaintiff  must  show  duty  was  for  his  benefit,  323. 

Injuries  must  be  such  as  the  statute  contemplated,  323. 

STEPPING-STONE. 

City  not  liable  for  permitting  on  outer  edge  of  sidewalk,  807  (Ed.  n.). 

STOCK.    See,  also,  Railway  Companies  and  Fence. 
Permitting  stock  to  run  at  large,  lOf',,  iio. 
Liability  of  railway  companies  toward,  110. 

Railway  companies  generally  required  to  fence  their  tracks  to  pre- 
vent cattle  straying,  110,  111  (Ed.  n.). 
Construction  of  statutes  requiring  railroads  to  fence  their  tracks, 
112  (Ed.  n.),  113  (Ed.  n.),  115  (Ed.  n.). 

In  Connecticut,  112  (Ed.  n.). 

In  Illinois,  112  (Ed.  n.). 

In  Indiana,  112  (Ed.  n.). 

In  Iowa,  112  (Ed.  n.). 

In  Kansas,  112  (Ed.  n.). 

In  Maine,  112  (Ed.  n.). 

In  Massachusetts,  112  (Ed.  n.). 

In  Michigan,  112  (Ed.  n.). 

In  Minnesota,  112  (Ed.  n.;. 

In  Missouri,  112  (Ed.  n.). 

In  New  Hampshire,  112  (Ed.  n.). 

In  New  York,  112  (Ed.  n.). 

In  Nevada,  112  (Ed,  n.). 

In  Ohio,  112  (Ed.  n.). 

In  Oregon,  112  (Ed.  n.). 

In  Utah,  113  (Ed.  n.). 

In  Vermont,  113  (Ed.  n.). 

In  Washington,  113  (Ed.  n.). 

In  Wisconsin.  113  (Ed.  n.). 
Cattle  guards  required  at  highway  and  farm  crossings,  114  (Ew.  n.). 


728  , INDEX. 

References  are  to  Pages. 

STOCK  —  Continued. 

—  Damages  —  Consequential  damages  for  injuries  to  cattle,   118 
(Eel.  n.). 

Measure  of  damages  the  reduced  value  of  the  animal  at  the  time  of 

the  killing,  122  (Ed.  n.). 
And  for  injury  to  stock,  the  difference  between  its  value  before  and 

after  the  injury,  expense  of  care,  and  temporary  loss  of  use,  122 

(Ed.n.). 
Exemplary  damages  not  allowed  unless  injury  ■willfully  inflicted,  122 

(Ed.  n.). 
Statutes  authorizing  double  damages,  123  (Ed.  n.). 
Providing  for  attorneys'  fees,  123  (Ed.  n.). 
Not  allowed  in  Louisiana,  123  (Ed.  n.). 

—  Burden  of  proof  —  Of  establishing  negligence  on    plaintiff,   121 
(Ed.n.). 

Fact  of  injury  prima  facie  evidence  of  negligence  in  some  States, 

121  (Ed.u.;. 
Plaintiff  must  prove  that  company  was  bound  to  fence  at  point  of 

entry,  122  (Ed.  n.)- 

—  Contributory  negligence  —  Of   owner  allowing  cattle    to  stray, 
119  (Ed.n.). 

Does  not  prevent  a  recovery  in  some  States,  though  animals  are 

running  at  large  in  violation  of  law,  119  (Ed.  n.). 
Or  straying  on  land  which  did  not  belong  to  owner,  119  (Ed.  n.). 
Kule 

In  New  York,  120  (Ed.  n.). 
In  Indiana,  120  (Ed.  n.). 
In  Michigan,  120  (Ed.  n.). 
Pasturing  hogs  in    field  with    knowledge  of  defect  in  fence,   120 

(Ed.  n.). 
Turning  "  breechy "  horse   in  field  with   knowledge    of  defective 

fence,  120  (Ed.  n.). 
Kun  over  by  trains,  463  (Ed.  n.). 

STOCKBROKER. 

Neglect  of  duties  by,  444. 

STORM.     See  Act  of  God. 

STRANGERS.     See  Licensee,  Trespasser. 

STREETS.     /S'ee  Highways. 

STRIKES. 

Liability  of  railroad  companies  for  delays  and  damages  by,    356 
(Ed.  n.). 

SUB-CONTRACTOR.     See  Contractor. 


iNUKx.  729 

4lel'ereuceH  are  to  I'agoK. 

SUBJACENT  SUPPORT.     Ste  SurroKT. 
SUNDAY. 

lujuries  received  while  traveling  on,  In  violation  of  law,  40  (K«i.  n.;, 

480  (Ed.  n.). 
Laboring  on  Suntlay,  480  (Ed.  d.). 
The  rule   lu  MaseHchusetts  and   8ome    New   England    States,    481 

(Etl.  11.). 
SUPPUKT. 

Lateral  and  subjacent  support,  C,  C6-70. 

Owner  has  right  to   lateral  support  of  natural   soil  from   luml  of 

neighbor,  G. 
But  not  when  burdened  with  buildings,  G. 
Kight  to  support  of  buildings  may  be  acquired  by  prescription,  G 

(Ed.  n.),  70  (Ed.  n.),  GD. 
This  has  been  questioned,  7  (Ed.  n.). 
Right  to  support  where  title  to  adjoining  parcels  Is  derived  from  a 

coumiou  owner,  7  (Ed.  n.). 
Right  to  lateral  support  not  lost   by  placing  buildings  upon  It,  7 

(Ed.  n.). 
Thi-re  must  be  appreciable  damage  to  entitle  one  to  a  right  of  action 

for  removing  lateral  support,  7  (Ed.  n.). 
Adjacent  owner  must  exercise  care  and  skill  In  excavating  the  soil, 

7  (Ed.  n.). 
lie  is  liable  if  he  conduct  the  work  so  negligently  as  to  damage  his 

neighbor,  7  (E<1.  n.). 
He  must  give  notice  to  his  neighbor  to  enable  him  to  protect  bis 

building,  8  (Ed.  n.). 
He  cannot  escape  liability  for  negligence  by  placing  the  work  In  the 

hands  of  a  contractor,  8  (Ed.  n.). 
Where  a  duty  Is  Imposed  upon  him  by  statute,  8  (Ed.  n.). 

—  Remedy  —  The  adjoining  owner  may  bring  an  action  for  damages 
or  enjoin  the  prosecution  of  the  work  of  excavation,  8  (Ed.  n.). 

—  Municipal  corporation  —  The  right  to  the  lateral  support  of  the  soil 
cannot  be  acquired  by  the  abattlng  owner  as  against  a  city,  9 
(Ed.  n.). 

—  Subjacent  support  —  The  owner  of  the  surface  is  entitled  to  the 
right  of  support  by  the  mine  owner  beneath,  'J  (Ed.  n.). 

But  not  to  the  support  of  buildings  upon  the  surface,  9  (Ed.  n.). 

liight  acquired  by  prescription,  G,  9  (Ed.  n.). 

Right  regulated  by  the  terms  of  the  grant,  "J  (Ed.  n.). 

—  Statute  of  limitations — begins  to  run  from  the  time  damage 
accrues,  9  (Ed.  n.). 

Second  subsidence  of  land  caused  by  excavations  fifteen  years  pre- 
vious—  statute  of  limitations  no  bar  to  recovery  of  damages 
for,  9  (Ed.  n.). 


730  INDEX. 

Beferences  are  to  Pages. 

SUPPORT  —  Continued. 

—  Contributory  negligence  —  failure  of  owner  notified  of  intended 

excavations  to  protect  his  buildings,  9  (Ed.  n.")* 
Negligent  construction  of  building,  10  (Ed.  n.). 
Subsidence  of  land  after  execution  of  lease  to  defendant  authorizing 

him  to  take  the  minerals  beneath  the  surface,  10  (Ed.  n.). 
Measure  of  damages,  10  (Ed.  n.). 

Effect  of  excavating  negligently  near  a  modern  house,  6,  66,  69. 
"Whether  adjoining  owner  is  answerable  for  negligence  only  in  the 

exercise  of  his  right  to  use  his  own  land,  67,  68. 

SURFACE  WATER.     See  Water. 
SURGEON.     See  Physicians  and  Surgeons, 

TELEGRAPH  COMPANY. 

Cannot  relieve  themselves  by  contract  from  liability  for  negligence, 

591-595  (Ed.  n.). 
Not   liable  for  correct   transmission    of    message  beyond  amount 

received  unless  message    repeated    at   additional    expense,    594 

(Ed.  n.). 
Negligence  must  be  the  proximate  cause  of  the  loss,  594  (Ed.  n.). 
Reasonable  regulations,  594  (Ed.  n.). 
Liability  for  negligence  in  transmission  of  cypher  telegrams,  593 

(Ed.  n."). 

TENANT.     See  Landlord  and  Tenant. 

TENNESSEE. 

Rule  as  to  comparative  negligence  in,  466  (Ed.  n.). 
Actions  for  injuries  causing  death,  540  (Ed.  n.),  580  (Ed.  n.). 
Negligence  of  parent  not  imputable  to  child,  515  (Ed.  n.). 
Rule  of  mitigation  of  damages,  466  (Ed.  n.). 
Common  carriers  may  limit  liability,  345  (Ed.  n.). 

TEXAS. 

Comparative  negligence  denied  in,  466  (Ed.  n.). 

Actions  for  injuries  causing  death,  540  (Ed.  n.),  580  (Ed.  n.). 

Burden  of  proof  on  defendant  to  establish  contributory  negligence,. 

471  (Ed.  n.). 
Negligence  of  parent  not  imputable  to  child,  515  (Ed.  n.). 
Exemplary  damages    in  actions    for   injuries   causing    death,    544 

(Ed.  n.) 
Common  carriers  may  limit  liability,  345  (Ed.  n.). 

THIRD  PARTIES. 

Not  privy  to  contract,  liability  for  injury  to,  11,  12  (Ed.  -a..). 
Intervening  between  cause  and  injury,  28. 


INDEX.  731 

l{t'forence§  arc  to  I'lMtcs. 

TIIOROGOOD  V.  BRYAN,  507. 

TICKET,  RAILWAY'. 

CoDditioDS  upon,  3G5  (Ed.  n.). 

TORT. 

Corporation  can  be  guilty  of,  293. 

Railway  passenger  can  sue  in  tort  or  contract,  868. 

TOWN. 

No  common-law  obligation  resting  on  New  England  towns  to  repair 
highways,  135  (Va\.  n.). 

Injury  occasioned  by  defect  in  highway  and  some  other  cause,  liabil- 
ity of  town,  32  (Ed.  n.),  33  (Ed.  n.)- 

traffic;  act. 

Railway  and  Canal  Trafflc  Act,  349-352. 

train. 

What  is  under  Employers'  Liability  Act,  234,  235. 

TRAP. 

Owner  liable  for,  on  premises,  79. 

TR.WELER.     Ser  Law  ok  tiik  Road. 

TRESPASSER. 

No  liability  for  injuries  to,  74. 

ChiKl  fulling  in  uncovered  cistern  at  a  distance  from  the  highway, 

70  (Ed.  n.). 
Where  one  went  into  a  factory  intended  exclusively  for  workmen  and 

was  injured,  76  (Ed.  n.). 
Where  one  In  response  to  an  alarm  of  fire  ran  through  defendant's 

store  and  fell  down  an  opening  in  the  rear,  7t!  (Ed.  n.). 
Where   a  child  of  a  tenant  of   a  tenement  houne  got  out  on  a  Arc 

escape  and  fell  through  a  defective  trap-door,  77  (Ed.  n.). 
Exceptions   in   ca^*es  of  children  where  the  danger  is  exposed,  77 

(Ed.  n.),  518  (Ed.  n.),  520  (Ed.  n.). 
Master  or  servant  as,  252  (P]d.  n.),  263. 

I'RDSTEES. 

Neglect  of  duties  by,  254-265. 

What  is  a  trust,  254. 

Degree  of  care  to  be  exercised  by  trustee,  265. 

Principal  duties  of,  257. 

Bedaclng  property  into  possession  within  a  reasonable  time,  257. 

The  safe  custody  of  it,  257-263. 

The  proper  investment  of  it,  257,  263,  264,  266. 

The  distribution  of  it,  265. 


732  INDEX. 

References  are  to  Pages. 

TUEN-TABLES. 

Injuries  to  children  by,  78  (Ed.  n.),  519  (Ed.  n.). 

ULTRA  VIRES. 

Municipal    corporation  not  responsible  for  negligence  of    agents 

when  their  acts  are  not  within  the  scope  of  its  corporate  powers, 

149,  150. 
Private  corporation  cannot  set  up  plea  of,  in  action  for  negligence, 

153. 

UTAH. 

Railroad  companies  required  to  fence  tracks,  113  (Ed.  n.). 
Action  for  injuries  causing  death,  582  (Ed.  n). 
Negligence  of  parent  not  imputable  to  child,  515  (Ed.  n.). 

VENDOR. 

Liability  to  third  party  for  injury  by  sale  of  dangerous  goods,  11,  12 
(Ed.  n.),  285,  286  (Ed.  n.). 

VERMONT. 

Action  for  injuries  causing  death,  540  (Ed.  n.),  583  (Ed.  n.). 
Rule  as  to  burden  of  proof,  474  (Ed.  n.). 
Negligence  of  parent  not  imputable  to  child,  515  (Ed.  n.). 
Railroad  companies  required  to  fence  tracks,  113  (Ed.  n.). 
Master  must  furnish  safe  appliances,  196  (Ed.  n.). 

VICE-PRINCIPAL. 

Test  whether  one  is  fellow-servant  or  vice-principal,  190  (Ed.  n.j, 
196  (Ed.n.) 

VINDICTIVE  DAMAGES,  644  (Ed.  n.). 

VIOLATION  OF  LAW. 

That  plaintiff  was  engaged  in  violating  law  at  time  of  injury  does 
not  necessarily  bar  his  right  of  recovery,  39  (Ed.  n.). 

VIRGINIA. 

Comparative  negligence  denied  in,  466  (Ed.  n.). 

Burden  is  on  defendant  to  prove  plaintiff's  contributory  negligence, 

471  (Ed.  n.). 
Common  carriers  may  limit  liability,  345  (Ed.  n.). 
Action  for  injuries  causing  death,  583  (Ed.  n.). 
Negligence  of  parent  not  imputable  to  child,  515  (Ed.  n.) . 
Master  must  furnish  safe  appliances,  196  (Ed.  n.). 

VISITOR. 

See  Invitation,  62,  267,  279. 
See  GUKST,  102. 


INDEX.  733 

Kefereuces  ar»  to  TuiCes. 

\OU'NTKEU. 

VuluutecT  aASisUnt,  a  fellow-servant,  185,  189  (Ed.  n.). 
Minor  son  of  railroad  employe  assLstlng  father,  189  (Kd.  n.). 
Tassenger  on  street   car  a.s.slstlnp;  ilriver  at  his  request  In  pushing 

back  car  not  a  volunteer,  If^d  (ICd.  n.). 
Passer-by  asked  to  help,  18t;. 

Passenger  aysisllng  In  getting  trunk  out  of  bacgage  car,  189  (Ed.  n). 
Contributory  negligence  of  volunteer,  18y  (Kd.  u.),  190  (Ed.  n.). 
Less  than  ordinary  care  required  as  to,  457. 

WAIVEU.     See  Relbask. 

Of  right  of  action  by  employe  by  remaining  in  service  afterdiscovery 
of  defect  in  machinery,  493  (Ed.  n.). 

WAREHOUSEMAN. 

Liability  of   common  carrier  as,   340  (Ed.    n.),   341   (Ed.    n.;,   307 
(Ed.  n.). 

WARRANTY. 

Of  carrier,  CI. 

Of  seller  of  article,  Gl.        . 

WASHINGTON. 

Action  for  Injuries  causing  death,  r)40  (Ed.  n.),  584  (Ed.  n.). 
Burden  is  on  defeudunt  to  prove  plaiutiS's  contributory  negligence, 
472  (Ed.  n.). 

WATER. 

Bringing  water  upon  land,  92,  100. 

The  doctrine  of  Fletcher  v.  Rylands,  92  n.,  101. 

Surface  water,  common-law  and  civil-law  doctrine,  93  (Ed.  n.). 

Liability  of  municipal  corporation  for  injuries  from  How  of  surface 

water  by  diauge  of  griule  of  streets,  94  (Ed.  n.),  302  (E<1.  n.). 
Of  railroad  companies  for  obstruction  or  diversion  of  flow  of  surface 

water,  95  (Ed.  n.). 
Diversion  of  water,  94,  97  (Ed.  n.). 
Pollution  of  welLs,  97  (Ed.  n.),  98  (Ed.  n.;. 
Percolating  water,  97  (Ed.  n.),  98  (Ed.  n.). 

WELL. 

Pollution  of,  97  (Ed.  n.),98  (Ed.  n.). 

WEST  VIRGINIA. 

Comparative  negligence  denied  In,  400  (Ed.  n.). 
Actions  for  injuries  causing  death,  584  (Ed,  n.). 
Burden  of  proof  on  defendant  to  establLnh  plaintiffs  contributory 
negligence,  472  (Ed.  n.). 


734  INDEX. 

References  are  to  Faees. 

WIFE. 

Action  tor  injuries  causing  death,  556  (Ed.  n.),  et  aeq. 
Contributory  negligence  of  husband  driving  with,  imputable  to,  612 
(Ed.  n.). 

WILLFUL. 

Intentional  or  willful,  3. 

WINDOW. 

Projecting  arm  from  car  window,  378  (Ed.  n.). 

WISCONSIN. 

Employers  liability  statutes,  251  (Ed.  n.). 

Comparative  negligence  denied  in  466  (Ed.  n.). 

Common  carriers  may  limit  liability,  345  (Ed.  n.). 

Action  for  injuries  causing  death,  540  (Ed.  n.),  .*;85  (Ed.  n.;. 

Burden  of  proof  on  defendant  to  establish  plaintiff's  contributory 

negligence,  472  (Ed.  n.). 
Railroad  companies  required  to  fence  tracks,  113  (Ed.  n.). 
Master  must  furnish  safe  appliances,  196  (Ed.  n,). 

WRONG-DOER. 

Abatement  of  action  by  death  of,  547. 

WYOMING. 

Action  for  injuries  causing  death,  585  (Ed.  n.),  586  (Ed.  n.). 


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